Opinion
CV166013257S
05-31-2018
Hanna MARTOCCHIO v. Anthony MALARNEY et al.
UNPUBLISHED OPINION
OPINION
John W. Pickard, Judge Trial Referee
On June 7, 2016, the plaintiff, Hanna Martocchio, filed an amended complaint against the defendant, Anthony Malarney (Malarney), and the municipal defendants, the Board of Education, Regional School District No. 7 (Board of Education), Judith A. Palmer, Superintendent (Superintendent), and Kenneth Chichester, Principal (Principal) (hereinafter, collectively, "municipal defendants"). The plaintiff alleges the following facts in her amended complaint. On October 9, 2014, the plaintiff was a student at Northwestern District No. 7 Regional High School in Winsted (high school). A high school teacher, Rachel Evans, allowed her "to leave the [high school] commons period [then] without signing out" or "a signed pass." The plaintiff, thereafter, "entered an unoccupied [art] classroom through an unsecured door at the rear of an ongoing class being taught by [teacher] Bridget Grady." She was "unsupervised by any agent, servant, and/or employee of the defendant Board of Education while in the unoccupied classroom." On the same date, Malarney, a fellow student at the high school, "failed to report" and/or "sign into [his] commons period." Ms. Evans also "failed to report" Malarney’s "failure to report to" and/or "sign into [his] commons period to the Housemaster using a class attendance report slip." Instead, "defendant Malareny was allowed to roam the school unsupervised by any agent, servant and/or employee of" the Board of Education. The plaintiff alleges that she was raped by Malarney in that art classroom.
The first four counts of the amended complaint allege that Malarney assaulted (count one) and battered (count two) her, intentionally inflicted emotional distress (count three), and falsely imprisoned (count four) her. The next two counts of the amended complaint are brought against the Board of Education. Count five alleges premises liability against the Board of Education. The Board of Education "had a duty to maintain the premises" of the high school in a "reasonably safe condition for the reasonable anticipated uses of persons lawfully on the premises, including the plaintiff[,]" who was an invitee to the school, but it "negligently performed these duties." Specifically, the Board of Education failed to "properly supervise and control its employees given authority and responsibility to maintain its premises in a reasonably safe manner," "adopt adequate policies for keeping its students safe while on its premises," "warn the plaintiff of [the] defendant Malarney and the reasonable likelihood of being injured by [him]," "inspect its premises," "maintain a proper level of security on its premises," "control its premises ... to prevent the injuries that the plaintiff was caused to suffer," and "maintain the premises" of the high school "in a reasonably safe condition for the reasonable anticipated uses of persons lawfully on the premises," including the plaintiff.
On May 3, 2017, the clerk entered a default against Malarney because he did not file an answer to these counts against him in the amended complaint.
Count six alleges negligent supervision against the Board of Education. The Board of Education "was charged with the duty of prescribing and enforcing rules for the discipline and supervision of students in public schools within the Regional School District # 7, including" the high school. The Board of Education had the duty to "properly supervise and care] for the physical well-being of minor children who were students of the defendant Board of Education," to "establish and implement reasonable safety protocols to protect minors, such as the plaintiff, who attended" the high school. The Board of Education breached this duty allegedly outlined in the Regional School District # 7 Board of Education Teacher Handbook (teacher handbook), in the following ways. The Board of Education had "failed to require the plaintiff to produce a signed pass from her art teacher gaining permission to leave commons period in order to go work in the Art Department." The Board of Education knew or should have known that "the door to the [art] classroom was unlocked." Ms. Grady "failed to prevent or report the plaintiff’s presence in an unsupervised classroom." Malarney "had failed to sign into [his] commons period" and Ms. Evans "had failed to report [his] absence from [his] commons period." The Board of Education breached their duty "to monitor student behavior" and "properly and adequately control students" under their supervision.
The remaining two counts of the amended complaint allege negligent supervision against the superintendent (count eight) and the principal (count nine). The plaintiff alleges that the superintendent and principal had the duty to "properly supervi[se] and car[e] for the physical well-being" of the plaintiff, Malarney, and "minor children who were students of the Board of Education. The superintendent and principal "had a duty [of care] to establish and implement reasonable safety protocols to protect minors, such as the plaintiff, who attended" the high school. The superintendent and the principal breached this duty of care to the plaintiff, in violation of the teacher’s handbook, in the same ways identified in count six of the amended complaint. The plaintiff claims economic and non-economic damages in her prayer for relief.
Count seven was omitted from the amended complaint.
On July 22, 2016, the municipal defendants filed their answer and special defenses to the amended complaint. In relevant part, these defendants admit that the plaintiff signed into her commons period on October 9, 2014, but deny that she was engaged in school work in the art classroom. They deny the negligence allegations against them and the plaintiff’s claimed injuries. The municipal defendants allege five special defenses. The first special defense alleges that the plaintiff’s claims against the Board of Education are "barred by the doctrine of governmental, discretionary act immunity." The second special defense alleges that the plaintiff’s claims against the superintendent and principal are "barred by the doctrine of qualified, discretionary act immunity." The third special defense alleges that counts five and six of the amended complaint "fail to state claims upon which relief may be granted." The fourth special defense alleges that the plaintiff was contributorily negligent and the injuries were caused by her violation of "school rules and/or [failure] to follow the terms of her Honors Art Contract by failing to notify the appropriate school personnel that she would be going to the Art Room during Commons Period on October 9," permitting "Malarney access to the Art Room on that date by opening the locked Art Room door for him," "when she knew or should have known that she had failed to follow school rules and/or the terms of her Honors Art Contract by failing to notify the appropriate school personnel that she would be going to the Art Room during Commons Period of October 9," and by failing "to notify any school personnel that she needed assistance while she was in the Art Room during Commons Period, although it was reasonable and practicable to do so." The fifth special defense is that "[i]f the plaintiff’s claims as against Anthony Malarney occurred as she alleges, as opposed to occurring with the plaintiff’s consent, then the plaintiff’s claims against these defendants [are] barred by the intervening, superseding acts of Anthony Malarney." On August 1, 2016, the plaintiff denied all of the special defenses.
On May 4, 2017, the municipal defendants moved for summary judgment on counts five, six, eight and nine of the amended complaint on the ground of immunity because all of the alleged acts or omissions of these defendants implicate discretionary rather than ministerial acts. The "plaintiff does not come within the identifiable victim/imminent harm exception to overcome the immunity" because the plaintiff "cannot establish that it was apparent to the defendants that she was in ‘imminent harm,’ with respect to Anthony Malareny, at the time alleged in her Amended Complaint." In support of their motion, the municipal defendants filed a memorandum of law and copies of the plaintiff’s responses to supplemental requests for production (Exhibit A), which include selections from the teacher’s handbook applicable on October 9, 2014 (exhibits one through seven). Among other exhibits, these defendants filed copies of the sworn and notarized affidavits of the superintendent (Exhibit E), principal (Exhibit F), and high school teachers Bridget Grady (Exhibit G), Kathy Cady (Exhibit H), Rachel Evan (Exhibit I), and Alexa Fermeglia (Exhibit J).
On December 15, 2017 and December 18, 2017, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment along with exhibits. The plaintiff argues that counts five, six, eight and nine of the amended complaint are not barred by governmental immunity because the plaintiff was an identifiable victim subject to imminent harm on October 9, 2014. The plaintiff explains that the defendants "had a clear and unequivocal duty to act immediately to prevent the harm" to the plaintiff because they "had actual knowledge that this specific classroom had been previously utilized by students as a secluded area for students to engage in sexual behavior. The defendants were aware that sexual conduct between students had been taking place in the very classroom where the plaintiff was sexually assaulted." In support of this argument, the plaintiff submits an affidavit of her father, George Martocchio, who attests that on October 9, 2014, the principal "informed [him] that the school was aware that this particular classroom in which the incident took place was a known area where students would go to ‘make out.’ " The plaintiff also relies upon the statement that teacher Alexa Fermeglia had actual knowledge that the plaintiff was in an unoccupied classroom not under the supervision of an administrator on October 9, 2014. The plaintiff argues that the principal should have known that she was at risk of imminent harm because he had a duty to supervise the "place that was known for students engaging in sexual activity. Based upon Defendants’ knowledge of the situation the Defendants had a duty to supervise the Plaintiff that was clear and unequivocal."
The plaintiff attempts to argue in her memorandum of opposition that the municipal defendants breached an additional duty of care that the plaintiff be free from sexual assault pursuant to a sexual harassment policy in effect at the high school. The plaintiff attempts to introduce a copy of that policy in response to the municipal defendants’ motion for summary judgment. The plaintiff has not requested or received leave from the court to amend her complaint to add this allegation, so the court declines to consider a new breach of duty of care and the harassment policy on summary judgment.
DISCUSSION
Practice Book § 17-49 provides in relevant part: "[Summary judgment] shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... 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 omitted; internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
I
Governmental Immunity
"The general rule ... is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity." (Citation omitted; internal quotation marks omitted.) Spears v. Garcia, 66 Conn.App. 669, 677, 785 A.2d 1181 (2001), aff’d, 263 Conn. 22, 818 A.2d 37 (2003). General Statutes § 52-557n "abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property." (Citation omitted; internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 850, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.3d 1132, 808 A.2d 1132 (2002). Section § 52-557n provides in relevant part: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or willful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." "The statute further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property [in § 52-557n(b) ]." (Citation omitted; internal quotation marks omitted.) Segreto v. Bristol, supra, 850.
A
Discretionary Acts
The municipal defendants contend that all of the allegations in counts five, six, eight and nine of the amended complaint implicate discretionary acts on behalf of the Board of Education, superintendent, and principal. This court, nevertheless, considers the specific allegations in these counts of the amended complaint to determine whether the plaintiff’s allegations implicate discretionary acts, which may entitle the municipal defendants to immunity, or ministerial acts, which would not entitle those defendants to immunity.
"The hallmark of a discretionary act is that it requires the exercise of judgment ... If by statute or other rule of law the official’s duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance ... [M]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citation omitted; internal quotation marks omitted.) Mills v. Solution, LLC, 138 Conn.App. 40, 48, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012).
Our Supreme Court in Strycharz v. Cady, 323 Conn. 548, 565, 148 A.3d 1011 (2016) found "[a]lthough 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 [in which] it is apparent from the complaint ... [that the nature of the duty] ... turns on the character of the act or omission complained of in the complaint ... Accordingly, [when] it is apparent from the complaint that the defendants’ allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus necessarily were discretionary in nature, summary judgment is proper ... Lastly, [d]etermining whether it is apparent on the fact of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions." (Citations omitted; internal quotation marks omitted.)
1
Maintenance, Inspection, and Control of Premises
The plaintiff alleges in count five of the amended complaint that the Board of Education breached its duty of care to her when it failed, essentially, to maintain, inspect and control the area of the high school where she was sexually assaulted by Malarney. The specific allegations include allegations that the Board of Education "failed to exercise reasonable care to have maintain the premises in a reasonably safe condition for the reasonable anticipated uses of the plaintiff," "failed to exercise reasonable care to make the premises safe for the plaintiff" and failed to "maintain its premises in a reasonably safe manner."
"In general, duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity ... A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs." (Citations omitted.) Grignano v. Milford, 106 Conn.App. 648, 656, 943 A.2d 507 (2008). In the present case, the plaintiff does not identify a Board of Education rule, policy or directive for it to maintain, inspect or control the art classroom or any classroom in a particular way. The court concludes, therefore, that that Board of Education has discretion on whether, when, and how to conduct any inspection, maintenance, and control of the art classroom.
2
Warning Students
The plaintiff also alleges in count five of the amended complaint that the Board of Education breached its duty of care to her when it "failed to warn the plaintiff of defendant Malarney and the reasonable likelihood of being injured by defendant Malarney."
Our Appellate Court in Colon v. Board of Education, 60 Conn.App. 178, 182, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) concluded that "it [was] apparent from the complaint that the plaintiffs [had] not alleged that [the teacher] was performing a ministerial duty" when the plaintiff alleged that the teacher "failed to warn the students in any manner that she was opening a door into a school hallway, when she knew or should have known that opening said door might cause injury or harm to the students including the minor plaintiff." Id., 182, 758 A.2d 900 n.3. Our Appellate Court reasoned that "[t]here [was] no allegation that [the teacher] was required to perform in a proscribed manner and failed to do so." Id., 182, 758 A.2d 900. Specifically, "there was no directive describing the manner in which [the teacher] was to open doors. Rather, it appear[ed] that it [was] [the teacher’s] poor exercise of judgment when opening the door that form[ed] the basis of the plaintiffs’ complaint." Id., 183, 758 A.2d 900. Our Appellate Court concluded that the teacher’s "actions were discretionary in nature." Id.
As a threshold matter, there is no evidence that the municipal defendants had any knowledge of any problems between the plaintiff and Mr. Malarney ahead of the alleged sexual assault. The municipal defendants submit affidavits of high school teachers, the principal and superintendant that prior to the alleged sexual assault, the plaintiff did not complain to them about Malarney’s interactions with her, and they had no other knowledge of anyone else who received that complaint.
In the present case, there is no allegation that the Board of Education "was required [to give a warning] in a proscribed manner and failed to do so." See Id., 182, 758 A.2d 900. The plaintiff has identified "no directive describing the manner in which [the Board of Education] was to [give a warning]" about Malarney or any similarly situated defendant. See Id., 183, 758 A.2d 900. There is no evidence before this court that the municipal defendants had a policy, directive or rule as to warning the plaintiff, or similar students, about Malarney or another individual who might perpetrate a sexual assault. Like the teacher in Colon, the Board of Education, therefore, had discretion in whether and how to issue any warning as to Malareny or a similarly situated defendant. Any allegations that the municipal defendants failed to issue any warning to the plaintiff about Malarney implicate their discretionary acts rather than ministerial duties.
3
Supervision of Employees
The plaintiff adds in count five of the amended complaint that the Board of Education breached its duty of care to her when it "failed to properly supervise and control its employees."
Our Supreme Court in Strycharz v. Cady, supra, 323 Conn. 567, addressed the specific issue of whether a school’s "general supervision of employees in a public school setting is a discretionary or ministerial function." "Although no Connecticut appellate tribunal has had an opportunity to examine whether general supervision of employees in a public school setting is a discretionary or ministerial function, several of our sister states have concluded that supervision of school personnel is a discretionary function ... In addition, both state and federal courts that have considered the issue in a different municipal or governmental setting also have concluded that general employee supervision is a discretionary function ... Because of the vital importance of their function to society, school administrators undoubtedly ‘must be accorded substantial discretion to oversee properly their myriad responsibilities.’ ... Accordingly, we conclude that [school official’s] duty to ensure that school staff members adequately discharged their assignments was discretionary because it was encompassed within their general responsibility to manage and supervise school employees." Id., 567-69, 148 A.3d 1011.
The plaintiff does not identify a specific rule, policy or directive on behalf of the Board of Education that mandates the board supervise its employees in a particular way. This court, therefore, construes the plaintiff’s alleged duty to "properly supervise and control its employees" in count five of the amended complaint as alleging the Board of Education breached its "general responsibility to manage and supervise school employees," which under the decision of Strycharz v. Cady, supra, 323 Conn. 567, is a discretionary act.
4
Supervision of Students
Counts six, eight and nine of the amended complaint allege that the Board of Education, superintendent and principal were negligent in their supervision of students in the school and because they failed to "establish and implement reasonable safety protocols to protect minors" at the high school. Specifically, the plaintiff and the municipal defendants rely upon allegedly breached provisions of the teacher’s handbook, to keep the classroom doors locked, to inquire about students having a hall pass and permission to leave the commons period, and to monitor and control students under their supervision.
Our Appellate Court in Costa v. Board of Education, 175 Conn.App. 402, 407-08, 167 A.3d 1152, cert. denied, 327 Conn. 961, 172 A.3d 801 (2017) provides some guidance on whether a school has a ministerial duty to supervise its children under its care. In Costa v. Board of Education, supra, 407-08, 167 A.3d 1152, the court held that "[a]lthough the plaintiffs suggested] that the defendants’ duty to supervise students during school sanctioned events such as the senior picnic was ministerial rather than discretionary in nature, the plaintiffs [relied] upon general safety guidelines and school board policies that, while requiring adequate supervision of students, fail[ed] to prescribe the precise nature or scope of such supervision or the manner in which it should be carried out. In other words, the plaintiffs ... cited no clear directive that negated the need for the defendants to exercise judgment and discretion in providing adequate supervision."
In the present case, the plaintiff identifies the teacher’s handbook for instructions that the municipal defendants should follow to account for students’ attendance, but those provisions do not "prescribe[s] the precise nature of scope of such supervision or the manner in which it should be carried out." See Id. First, the plaintiff alleges in the amended complaint that the defendants violated the teacher’s handbook provisions because the art classroom door was unlocked rather than locked. Exhibit 1 of the plaintiff’s response to the defendants’ supplemental production requests does not describe a rule, policy or directive in the teacher’s handbook that the defendants must lock any classroom doors in the high school. Exhibit 1 only indicate that the "[t]eacher should check any unattended classroom and the doors to the outside. If a door is propped open, the teacher should check the outside area and report it to the Housemaster."
Second, the plaintiff alleges that the defendants violated the teacher’s handbook provisions because Malarney failed to sign into his commons period. Exhibit 2 of the plaintiff’s response to the defendants’ supplemental production requests does not describe a rule, policy or directive in the teacher’s handbook that the municipal defendants must report a student’s Commons period absence. Instead, the section provides that "[a]ll students including seniors must sign into Commons. Students who fail to sign in should be reported to the Housemaster using a ‘class attendance report’ slip." (Emphasis added.) See Ugrin v. Cheshire, 307 Conn. 364, 392, 54 A.2d 532, 54 A.3d 532 (2012) ("[n]one of these comments constitute a directive to the town giving rise to a ministerial duty because they all contain the qualifying words ‘should’ or ‘could,’ which indicates that the town had discretion to exercise its judgment in deciding whether to follow [the town counsel’s] advice"). The word "should" in the teacher’s handbook provides that the defendants had discretion on whether to report a student’s Commons period absence to the Housemaster.
Third, the plaintiff argues that the defendants violated the teacher’s handbook because Ms. Evans failed to report Malarney’s commons period absence. Although the plaintiff contends that Exhibits 3a and 3b of the plaintiff’s response to the defendants’ supplemental production requests detail a ministerial duty that teachers had to report of Malarney’s missed attendance, the municipal defendants argue in their memoranda that the applicable time period is the commons period. The court notes that Exhibit 3a discusses attendance policies for homeroom, whereas Exhibit 3b discusses attendance policies for the commons period. The municipal defendants contend that Exhibit 3b does not provide a rule, directive or policy that a teacher must report Malarney’s common period absence in a certain way under certain time constraints. Exhibit 3b provides with respect to commons period that "[a]ll students including seniors must sign into Commons. Students who fail to sign in should be reported to the Housemaster using a ‘class attendance slip.’ " (Emphasis added.) The plain language of Exhibits 3b uses the word "should," which provides that commons period teacher, like Ms. Evans, had discretion on whether and when to report students, like Malareny, who failed to sign in to the commons period to the Housemaster. See Ugrin v. Cheshire, supra, 307 Conn. 392.
Fourth, the plaintiff argues that the defendants violated the teacher’s handbook because Ms. Grady "failed to prevent or report the plaintiff’s presence in an unsupervised classroom ..." Fifth, the plaintiff argues that the defendants violated the teacher’s handbook because they "fail[ed] to require the plaintiff to produce a signed pass from her art teacher [giving her] permission to leave the commons period in order to go work in the Art Department ..." The court disagrees with the plaintiff that Exhibits 4 and 5 of the plaintiff’s response to the defendant’s supplemental production requests describe ministerial duties to not allow a student to be in an unsupervised classroom and to require the plaintiff to obtain a signed pass to attend the art classroom. Exhibit 4 does not mandate that teachers, staff or agents not allow students to be unsupervised in high school classrooms, or report the same. In relevant part, Exhibit 5 provides that "[s]tudents may sign out of Commons to go to the other Commons, Health Office, Media Center, school store, lavatory, locker or to get help from a teacher (only with a signed pass from that teacher). Once students from a common/study hall are done with their work, they will sign out of the Media Center and obtain a timed pass from the media specialist and return to their commons/study hall."
A plain reading of that handbook language requires students to obtain signed passes in one of two circumstances: either to leave Commons period to "get help from a teacher," or "upon their return from the Media Center to their respective commons/study halls." The plaintiff alleges neither circumstance in the amended complaint. Instead, the plaintiff alleged that she was attending an unsupervised art classroom to work on her art project. These handbook provisions did not require the municipal defendants to prevent the plaintiff from attending the unsupervised art classroom or require her to have a signed pass to attend that classroom.
Sixth, the plaintiff argues that the defendants violated the teacher’s handbook because they failed to "monitor student behavior." Exhibit 6 of the plaintiff’s response to the defendant’s supplemental production requests is another provision of the teacher’s handbook, which describes teacher "monitoring" in four circumstances: 1) "Hallway Supervision Before Homeroom," where in relevant part, "[t]he staff member on duty shall ... [a]ssist Housemaster in directing students to homeroom ..."; 2) "Arts Common Hallway Supervision Before Homeroom," where in relevant part: "[t]eacher should check any unattended classroom and the doors to the outside. If a door is propped open, the teacher should check the outside area and report it to the Housemaster"; 3) "Rotunda- Main Hallway," where in relevant part: "[t]eachers should actively monitor ... [and] supervi[se] ... the following areas: *Rotunda area- including Senior Commons; *Main Corridor; *Hallway Lavatories; *Back Stairway, including exist doors ..."; and 4) "Commons," where in relevant part: "All students including seniors must sign into Commons. Students who fail to sign in should be reported to the Housemaster using a ‘class attendance report’ slip ... The Commons teacher is expected to become familiar with his/her Commons population and monitor student behavior."
The plaintiff does not argue that the defendants violated the handbook because the teachers did not "assist Housemaster in directing students to homeroom." Instead, upon information and belief, the plaintiff bracketed the language in the teacher’s handbook regarding the "Rotunda- Main Hallway" as the provision of the handbook that the defendants allegedly breached. This language provides that "teachers should actively monitor ... [and] supervise" those particular areas, which suggests that teachers have discretion on whether and how to supervise students in those Rotunda areas. See Ugrin v. Cheshire, supra, 307 Conn. 392.
Seventh, the plaintiff argues that the defendants violated Policy # 5131 regarding "Student Conduct at School and Activities," because in bracketed part: "2. Principal. Principals may implement necessary procedures and school rules and regulations on student behavior consistent with Board of Education policies. Principals may involve representatives from school personnel, students, parents, and citizens in the community in developing standards, specific rules and regulations, and procedures for student conduct at school and in out of school activities. 3. Teachers are responsible for proper adequate control of students and for student instruction on rules and regulations of proper conduct. Teacher responsibility and authority extends to all students of the school district under the assigned supervision of the teacher and to other students with whom the teacher comes into contract throughout his or her work day." (Emphasis added.)
The plain language of Policy # 5131 indicates that principals may "implement necessary procedures and school rules and regulations on student behavior" at their discretion. Teachers have discretion, under that rule, for "proper adequate control of students" but that policy provides "no clear directive that negated the need for the defendants to exercise judgment and discretion in providing adequate supervision." See Costa v. Board of Education, supra, 407-08, 167 A.3d 1152.
For all of the foregoing reasons, the court concludes that the teacher’s handbook provisions offered by the plaintiff do not prescribe ministerial duties in how the municipal defendants were to supervise the plaintiff and Malarney on October 9, 2014. Either the handbook provisions do not support the ministerial duties advanced by the plaintiff, or the provisions permit the municipal defendants to exercise their discretion on whether and how to respond to the suggestions in the teacher’s handbook.
5
Board of Education’s Failure to "Adopt Adequate Policies for Keeping Its Students Safe While on Its Premises"
Count five of the amended complaint alleges that the Board of Education, generally, "failed to adopt adequate policies for keeping its students safe while on its premises." The municipal defendants contend that would involve the exercise of their discretion. The court agrees with the municipal defendants.
In Wadsworth v. Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV-90-0266762-S (November 16, 1994, Belinkie, J.), the court acknowledged there, "[u]nder directives issued by the Bridgeport Board of Education ... [the] principal of the school ... was obligated to establish and maintain measures and procedures to enhance the safety and security of pupils, staff personnel and the plant. This directive left the matter of security up to the discretion of the principal." The court concluded, under those directives, "[t]he principal was not ordered to perform anything in a prescribed manner, without the exercise of judgment or discretion as to the propriety of the action." Id. As a result, the court denied the plaintiff’s motion to set aside the directed verdict in favor of the government because governmental immunity applied for the principal’s discretionary acts. Id.
Similarly, our Supreme Court in Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989), examined the plaintiff’s allegations that the municipal defendants failed to conduct "adequate inspections" of the dwelling. Our Supreme Court found that "[w]hile an inspection by definition involves ‘a checking or testing of an individual against established standards; ’ Webster, Ninth New Collegiate Dictionary; what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment ... Since the acts in the [challenged] count required in some measure the exercise of judgment by a municipal employee, we conclude that they were not ministerial and therefore the defendants were immune from liability." (Emphasis added.)
The plaintiff alleges that the "Board of Education failed to adopt adequate policies for keeping its students safe while on its premises [the high school]." (Emphasis added.) (Count Five, ¶ 22(h).) Like the principal in Wadsworth v. Board of Education, supra, Superior Court, Docket No. CV-90-0266762-S; here, the Board of Education "was not ordered to perform anything in a prescribed manner, without the exercise of judgment or discretion." See Id. The Board of Education had discretion to adopt adequate safety policies for its students. Therefore, any failure by the Board of Education to adopt adequate safety policies would not implicate a ministerial duty that would waive the Board of Education’s immunity as a matter of law.
For all of these reasons, the court concludes that duties that the municipal defendants allegedly violated in the amended complaint are not ministerial because they are not prescribed by a rule, policy or directive to be performed by those defendants in a particular manner. The alleged duties also involve the municipal defendants’ discretion in whether those duties should be performed, when and how. Accordingly, the court next addresses whether the plaintiff fits within any recognized exception to municipal immunity.
B
Identifiable Victim Subject to Imminent Harm Exception
"The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, 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 ... second, where a statute specifically provides for a cause of action against a municipality or a municipal official for failure to enforce certain laws ... and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Citations omitted.) Evon v. Andrews, supra, 211 Conn. 505. "The imminent harm, identifiable victim exception has three elements: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to harm." Brooks v. Powers, 165 Conn.App. 44, 47, 138 A.3d 1012 (2016), reversed on other grounds, 328 Conn. 256, 178 A.3d 366 (2018) citing Haynes v. Middletown, 314 Conn. 303, 313, 101 A.3d 249 (2014). "All three [elements] must be proven in order for the exception to apply." (Citation omitted; internal quotation marks omitted.) Haynes v. Middletown, supra, 313. "The defendants, as the parties moving for summary judgment, [have] the burden of showing that as to at least one of the three elements of the imminent harm, identifiable victim exception- (1) imminent harm; (2) identifiable victim; (3) apparentness- no reasonable jury could conclude from the evidence submitted that it was met." Brooks v. Powers, supra, 64.
"[T]he only identifiable class of foreseeable victims that [our Supreme Court has] recognized ... is that of schoolchildren attending public schools during school hours because: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they [are] legally required to attend school rather than being there voluntarily; their parents [are] thus statutorily required to relinquish their custody to those official during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Citation omitted; internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 436, 165 A.3d 148 (2017).
The plaintiff and the municipal defendants agreed at oral argument that the plaintiff was an identifiable victim because she was a school child attending school when her alleged sexual assault occurred on October 9, 2014. These parties dispute, however, whether it was apparent to the municipal defendants that she was in imminent harm. The plaintiff and the municipal defendants disagree on the nature of the dangerous condition at issue in this case. The plaintiff argues that the dangerous condition was the risk of sexual contact by another student in the unsupervised art classroom. By the plaintiff’s definition, this would encompass students going to the unsupervised art classroom to "make-out." The municipal defendants, on the other hand, identify the dangerous condition as the risk that the plaintiff would be sexually assaulted by Malarney in the unsupervised art classroom. The court agrees with the municipal defendants that the dangerous condition at issue in the identifiable victim subject to imminent harm exception is whether it would be apparent, under the circumstances, to the municipal defendants that the plaintiff was at risk of a sexual assault by Malarney in the unsupervised art classroom.
1
Apparent to Municipal Defendants that Plaintiff was in Imminent Harm
Our Supreme Court explained in Strycharz v. Cady, supra, 323 Conn. 586-87, that Haynes "rejected the temporariness requirement" or durational requirement to imminent harm identified in Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994) and held that its decision in Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989) "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 ... [Therefore,] 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." (Citations omitted; emphasis altered; footnote omitted; internal quotation marks omitted.) "[I]f a harm is not so likely to happen that it gives rise to a clear duty to correct the dangerous condition creating the risk of harm immediately upon discovering it, the harm is not imminent." (Citation omitted; internal quotation marks omitted.) Brooks v. Powers, 328 Conn. 256, 276, 178 A.3d 366 (2018). "For example, the risk of injury from an unprotected buzz saw in a classroom occupied by roughhousing fifteen year old children would clearly be imminent." Haynes v. Middletown, supra, 314 Conn. 323 n.15. "[T]he applicable test for the apparentness prong of the identifiable person-imminent harm exception is an objective one, pursuant to which [the court] consider[s] the information available to the [school official] at the time of [his or] her discretionary act or omission ... [The court] do[es] not ask whether the [school official] actually knew that harm was imminent but, rather, whether the circumstances would have made it apparent to a reasonable [school official] that harm was imminent." (Citations omitted; internal quotation marks omitted.) Strycharz v. Cady, supra, 589.
In Haynes, our Supreme Court also found the evidence that "school officials knew that horseplay in the locker rooms was an ongoing issue" combined with "evidence that the locker was in a dangerous condition and that it had been in that condition since the beginning of the school year" meant "[t]he jury reasonably could have inferred from this evidence that the dangerous condition was apparent to school officials. Although this evidence [was] far from compelling, [the Supreme Court was] unable to conclude that no reasonable juror could find that it was apparent to school officials that, in combination, the ongoing problem of horseplay in the locker room and the presence of the broken locker were so likely to cause an injury to a student that the officials had a clear and unequivocal duty to act immediately to prevent the harm either by supervising the students while they were in the locker room to prevent horseplay or by fixing the broken locker." (Footnotes omitted.) Haynes v. Middletown, supra, 314 Conn. 325. "Of course, whether harm in any particular case was imminent necessarily is a fact bound question." Brooks v. Powers, supra, 328 Conn. 275.
The present case is distinguishable from Doe v. Board of Education, U.S. District Court, Docket No. 3:15-CV-00452, 2017 WL 3392734 (MPS) (D.Conn., August 7, 2017), which found that it was apparent to the municipal defendants that the plaintiff was in imminent harm at school. In that case, the District Court described a series of events, where fellow high school students had physically and verbally assaulted the plaintiff, "a [high school] student with a learning disability" on the football and track team, over a two-year period of time. Id. During this time, the plaintiff alleged that another student had sexually assaulted him. Id. The incidents were reported by the plaintiff, his mother and other officials to the municipal defendants during that two-year period of time. Id. The municipal defendants "also received reports that ‘coaches sometimes encourag[ed] the violence as the coaches [were] verbally mean to the players- which [made] the players verbally mean to the lower class[men].’ " Id.
The District Court detailed the school’s response to the abuse of the plaintiff. Id. For example, at one time, the school guidance counselor, vice principal and case manager of the school "described the harassment as ‘everyday banter between the boys, back and forth.’ Id. Another time, a teacher witnessed a student pushing the plaintiff in the chest and making a homophobic remark to him, but that teacher " ‘dismissed it as mutual,’ and took no action." Id. A different time, a school paraprofessional insulted the plaintiff as a "hider" when the plaintiff turned his desk so that other students would not see him in a resource study hall for special education students. Id. "[W]hen [the plaintiff] requested to leave early to avoid his harassers, [the paraprofessional] asked the class ‘Don’t you wish you could’ leave early, and stated ‘we should all go to our Guidance Counselors so we can leave early.’ " Id. Another time, the plaintiff’s mother informed the vice principal about students who "cornered" the plaintiff "at track practice, pushed him against a fence, and punched him repeatedly, producing contusions and causing his shirt to rip," but "the track coach called [the plaintiff’s] mother to say that [the plaintiff] was ‘embellishing’ his complaints and [the vice principal] dismissed the incident as ‘mutual horseplay.’ " Id.
The District Court also noted that the plaintiff’s operative complaint "detail[ed] assault and harassment against other students," which school officials were aware of, including a football player’s ‘Quarterback Initiation,’ " which was allegedly a "ritual" of one or more sexual assaults by him on freshman player(s). Id. "Student W and Student X were "arrested on charges of rape" and were expelled by school officials "for one year." Id. "Student Y and three other Torrington football players jump[ed] three fourteen year old boys.’ " Id. "Though Student Y was charged with felony robbery, he was allowed to play on the team in fall 2012 and was awarded ‘Most Valuable Player.’ " Id. "In fall of 2012, [the municipal] defendants ‘were informed of other significant and severe acts of hazing, harassment, physical assault[,] and sexual assault among players on the football team.’ " Id. The opinion details many other specific examples, which were brought to school officials and allegedly handled inappropriately. Id.
The District Court concluded that the operative complaint "pl[ed] enough facts to make it plausible that it was apparent that the defendants’ failures to act more decisively to stop the bullying of [the plaintiff] would subject him to harm." Id. "[W]hile the allegations might not [have] been sufficient to state that defendants were aware of imminent harm from particular students the first or second time [the plaintiff] was attacked, by the fourth or fifth time- with all the verbal harassment of [the plaintiff] and the continuing culture of condoning violence by student athletes- one [could] infer that the harm would have been apparent to a reasonable school official." (Emphasis added.) Id. The District Court added "though bullying, like the ‘horseplay’ in Haynes, was technically prohibited by the school, it would have been apparent to a reasonable school official that it was nevertheless an ‘ongoing issue’ and ‘dangerous.’ ... Similar to a broken locker in an area with ongoing horseplay, the dangerous condition of bullying- and, in particular, [the plaintiff’s] continuing status as a target of repeated assaults- ‘was so likely to cause the harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm.’ " (Citations omitted; emphasis added; internal quotation marks omitted.) Id.
Although municipal defendants are not required to have actual knowledge of an imminent harm to a particular person for the "identifiable person/imminent harm" exception to apply; see Strycharz v. Cady, supra, 323 Conn. 584; in the present case, the municipal defendants submit a number of affidavits of certain high school teachers, the principal and the superintendent, that they did not have personal or secondary knowledge of any complaints by the plaintiff about her interactions with Malarney prior to her alleged rape by Malarney on October 9, 2014. Earlier, this court defined the dangerous condition as the risk that the plaintiff would be sexually assaulted by Malareny in the unsupervised, unoccupied art classroom on October 9, 2014. The affidavits submitted by the municipal defendants demonstrate there is no genuine issue of material fact that it was not apparent to them, under all of the circumstances, that the plaintiff would be sexually assaulted by Malareny in the unsupervised art classroom on October 9, 2014.
The burden, therefore, shifts to the plaintiff to produce evidence that raises a genuine issue of whether it was apparent to the municipal defendants, under all the circumstances, that she would be sexually assaulted by Malareny in the unsupervised, unoccupied art classroom on October 9, 2014. The plaintiff relies upon the affidavit of the plaintiff’s father, George Martocchio, which reports a statement that Chichester made to him on October 9, 2014 about the school knowing that the art classroom was an area where student went to "make out." The affidavit of the father is admissible because Chichester’s hearsay statement is admissible under the statement of a party opponent hearsay exception because it is being used against the declarant, Mr. Chichester. Unlike Doe v. Board of Education, supra, U.S. District Court, Docket No. 3:15-CV-00452, which detailed incidents of the school’s "continuing culture of condoning violence by student athletes," and the plaintiff’s "continuing status as a target of repeated assaults," here, there is no evidence that there was a "continuing culture of condoning" sexual assault at the plaintiff’s high school or that the plaintiff was a "a target of repeated assaults." At best, Chichester’s statement may be construed as the school having knowledge that the art classroom was an area where students "make out; " however, not all instances of high school students "making out" result in sexual assaults. Chichester’s affidavit does not raise a genuine issue of material fact on the dangerous condition, sexual assault, and whether it was apparent to the municipal defendants that the plaintiff would be sexually assaulted by Malarney in the unsupervised art classroom on October 9, 2014. Accordingly, the plaintiff’s evidence does not raise an issue of whether she was an identifiable victim subject to imminent harm because Chichester’s affidavit speaks to a classroom where students "made out," but not the dangerous condition at issue in this case, the plaintiff’s sexual assault by Malareny.
For these foregoing reasons, the municipal defendants are entitled to summary judgment on counts five, six, eight and nine of the amended complaint on the ground of municipal immunity because the duties allegedly breached by the municipal defendants in the amended complaint describe discretionary rather than ministerial acts and there is no evidence offered by the plaintiff to raise a genuine issue of whether the plaintiff may fit within the "identifiable victim/imminent harm" exception to municipal immunity.
CONCLUSION
The court enters summary judgment in favor of the municipal defendants on counts five, six, eight and nine of the amended complaint.
"A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings in not enough to preclude summary judgment ... The facts at issue [in the context of summary judgment] are those alleged in the pleadings ... The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." (Citation omitted; emphasis in original; internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 728-29, 145 A.3d 292, cert. denied, 323 Conn . 930, 150 A.3d 231 (2016).