Opinion
No. LLI CV 09 5007012S
May 25, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #102
I FACTS AND PROCEDURAL BACKGROUND
On October 19, 2009, the plaintiff, John Metallo, filed an eight-count complaint against the Torrington Board of Education (the board) and Susan O'Brien, the defendants. On March 22, 2010, the plaintiff filed a second amended complaint which is now the operative complaint. In it he alleges the following: O'Brien was an agent and employee of the board, as superintendent of schools, from March 2005 until approximately February 23, 2009. The plaintiff was a board employee as principal of Torrington high school from January 2, 2006 until August 15, 2008. On August 13, 2008, O'Brien called the plaintiff into a meeting with various attendees, including the board's attorney, the assistant superintendent, the director of human resources and a union representative. During that meeting, O'Brien accused the plaintiff of having an affair with a fellow school district principal and of engaging in other "dishonest and unprofessional behavior." The plaintiff claims that he denied these allegations but that he was called a "liar" by O'Brien and the board's attorney. O'Brien called a meeting of the same parties on August 15, 2008, during which the plaintiff once again denied the allegations. Despite this, the plaintiff alleges that O'Brien agreed not to release her accusations publicly if the plaintiff agreed to resign. As a result, the plaintiff resigned on August 15, 2008, but alleges that a letter from O'Brien accepting his resignation was dated August 13, 2008, two days earlier. O'Brien notified the board of the plaintiff's resignation on August 15, 2008.
On August 18, 2008, the Torrington Register Citizen (Register Citizen), the local newspaper, allegedly reported that the chairman of the board was "taken completely by surprise" when given the news of the plaintiff's resignation. In that article, the board chairman allegedly stated: "It's all in the hands of Dr. O'Brien. The Board is completely unaware of any reasons why Dr. Metallo handed in his resignation." Between August 16, 2008, and approximately December 19, 2008, the plaintiff alleges that O'Brien gave numerous people information about him, including board members, members of the press, parents and local community members. Specifically, the plaintiff claims that O'Brien distributed information that allegedly "proved that the plaintiff had committed felonies, engaged in inappropriate behavior with a female student [and] was having an affair with a fellow principal and was incompetent."
On approximately September 17, 2008, the board tabled the resolution to accept the plaintiff's resignation. Then, on September 24 and September 25, 2008, stories ran in the Register Citizen that O'Brien had investigated the plaintiff's e-mail communication with an assistant principal and, as a result, the assistant principal had been suspended. O'Brien also sent out a press release on September 25, 2008, saying that she would hold a press conference as to the plaintiff's resignation. The plaintiff alleges that although the board instructed O'Brien not to have a press conference, she provided interviews to at least one radio station and one television station. O'Brien continued to be employed by the district while these actions took place.
On October 5, 2008, another story ran in the Register Citizen about O'Brien's sexual harassment allegations against the plaintiff. The plaintiff claims that O'Brien provided "false and defamatory materials" to the paper including the "scripts" that O'Brien used during the August 13 and August 15, 2008 meetings. These included various allegations about the plaintiff's inappropriate activity with female employees, fraudulent conduct and inappropriate contact with current and former board members. The plaintiff also claims that O'Brien's allegations against him, which are false, were published in the Register Citizen on or about October 9, 2008. These allegations were also published in a number of other newspapers and media outlets. The plaintiff alleges that O'Brien also provided binders of the allegedly defamatory claims to board members. O'Brien spoke with the Torrington Parent Teachers Organization (PTO) in October 2008, and reiterated her allegations about the plaintiff. She also testified before the board on October 29 and November 5, 2008, about these same allegations. Thereafter, on November 12, 2008, the board approved the plaintiff's resignation.
On December 19, 2008, by a public letter, the board terminated its contract with O'Brien, but she remained employed as superintendent until February 23, 2009. In its letter, the board spoke of O'Brien's "reckless disregard and indifference to the privacy concerns of employees and others," and stated that she had made "potentially defamatory public statements about employees" and "used her position of authority to intimidate or demean employees and/or their families, members of the board, parents, students and other members of the public." The plaintiff claims, inter alia, that all of O'Brien's statements about him were false and defamatory, and that they were "part of a pattern and practice" of making statements with "knowledge of their falsity" or in reckless disregard as to their truth. As a result of O'Brien's statements while she was acting as an agent of the board, the plaintiff suffered and continues to suffer "a loss of reputation, professional esteem, pain, suffering and emotional distress, as well as loss of income from employment."
Counts one and two are in defamation against the board and O'Brien, respectively. In count three, which is an invasion of privacy count as to both the board and O'Brien, the plaintiff reiterates the defamation allegations and claims, inter alia, that several of the actions described therein "constitute an unreasonable intrusion upon the seclusion of the plaintiff; and/or unreasonable publicity given to the plaintiff; and/or publicity that placed the plaintiff in a false light before the public." In count four, which is a negligent retention and supervision claim against the board, the plaintiff reiterates the defamation allegations and adds that O'Brien and other board employees also made false and defamatory statements about other board employees. The plaintiff alleges that the board had a duty to supervise O'Brien and that it knew or should have known that O'Brien's actions were likely to cause the plaintiff harm and did so. Moreover, the plaintiff asserts that the board failed to supervise O'Brien and that it retained O'Brien even after her actions caused "irreparable harm" to the plaintiff and other board employees.
Specifically, the plaintiff asserts that: (1) a former Torrington middle school principal made false accusations about pornography on a teacher's computer, which resulted in a lawsuit that cleared that teacher of all allegations; (2) O'Brien falsely accused a special education teacher of watching pornography, but that teacher was subsequently cleared of all charges; (3) O'Brien suspended an assistant principal for "inappropriate e-mail conversations" with the plaintiff and that assistant principal was subsequently cleared of all allegations; and (4) O'Brien falsely accused a student of circulating a petition to reinstate the plaintiff.
Count five is a tortious interference claim against O'Brien. Counts six and seven allege an intentional infliction of emotional distress claim against O'Brien and a negligent infliction of emotional distress claim against the board and O'Brien, respectively. In the negligent infliction of emotional distress count, the plaintiff restates the defamation allegations and also alleges, inter alia, that the defendants' conduct created an unreasonable risk of causing the plaintiff emotional distress, that the distress was foreseeable and was and is "severe enough that it might result in illness or bodily harm, including, but not limited to, depression and anxiety." Moreover, the plaintiff alleges that this conduct has caused him to suffer damages by way of "lost income and benefits of employment, economic hardship, lost career and business opportunities, anxiety, humiliation and emotional distress."
On December 2, 2009, the board filed a motion to strike the complaint against it along with a supporting memorandum of law. On January 19, 2010, the plaintiff filed an objection to the motion to strike, along with a supporting memorandum of law, and on January 26, 2010, the board filed a reply in further support of its motion to strike. The court heard oral argument on the board's motion to strike and the plaintiff's objection on March 29, 2010. At oral argument, the parties stated that the motion to strike and the memorandum in opposition are still viable as to the substance of the complaint, even though the complaint has been amended twice since the motion to strike was originally filed. The parties specifically clarified that the counts at issue on the present motion are: count one (defamation), count three (invasion of privacy), count four (negligent retention and supervision) and count seven (negligent infliction of emotional distress).
II STANDARD FOR A MOTION TO STRIKE
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "The motion admits all facts that are well pleaded . . . but does not admit legal conclusions or the truth or accuracy of opinions . . . On a motion to strike, the trial court's inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 562, 974 A.2d 1055 (2009). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . [On the other hand] [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "Insofar as [a] motion to strike is directed [to] the entire complaint, it must . . . fail if any of the plaintiff's claims are legally sufficient." (Internal quotation marks omitted.) Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 521 (1991).
III PROCEDURAL ISSUES CT Page 10766
As an initial matter, the court must address three procedural issues. The first issue is whether the court must deny the motion to strike if any one of the counts is legally viable on the ground that the board is moving to strike the entire complaint. The plaintiff raises this argument in its memorandum. Despite the fact that this is a correct iteration of the law, this premise is inapplicable in the present matter. See Whelan v. Whelan, supra, 41 Conn.Sup. 520 [ 3 Conn. L. Rptr. 135]. The board is only moving to strike the claims against it, which are counts one, three, four and seven of the second amended complaint. Thus, the board is not moving to strike the complaint in its entirety, and this premise is inapplicable.The second issue is whether the motion to strike is the correct vehicle for the board to raise governmental immunity. The plaintiff argues that the board should have pleaded governmental immunity as a special defense, rather than raise it on a motion to strike. The board argues that a motion to strike is the proper vehicle to raise governmental immunity when it is apparent from the face of the pleadings that it was engaged in a governmental function. In Doe v. Board of Education, 76 Conn.App. 296, 819 A.2d 289 (2003), the Appellate Court stated: "We are mindful of our Supreme Court's statement that governmental immunity must be raised as a special defense in the defendant's pleadings . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] . . . Thus, a motion to strike ordinarily is an improper method for raising a claim of governmental immunity. We have recognized, however, that where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Citation omitted; internal quotation marks omitted.) Id., 299 n. 6. In the present matter, given that the complaint alludes to the board's supervision and retention of O'Brien, the court concludes that it is apparent from the face of the complaint that the board was engaged in a governmental function. As a result, the court concludes that the motion to strike is the proper vehicle to raise the issue of governmental immunity.
The third and final procedural issue is whether the court may grant a motion to strike counts against both defendants when the motion has only been brought by one defendant. Several Superior Court decisions have addressed the issue and have determined that the court cannot. "A motion to strike a count brought against multiple defendants may not be granted on the ground that the allegations are insufficient as they relate to a single defendant. When a single count of a complaint combines separate causes of action against multiple defendants, the proper way to cure any confusion in that regard is to file a [request] to revise, not a motion to strike the entire complaint . . . If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike . . ." (Citations omitted; internal quotation marks omitted.) Webster v. Pequot Mystic Hotel, LLC, Superior Court, judicial district of New London, Docket No. CV 0556799 (January 9, 2002, Hurley, J.T.R.) ( 31 Conn. L. Rptr. 217, 220); see also Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988)." Hodgate v. Ferraro, Superior Court, judicial district of New London, Docket No. CV 05 4001779 (November 10, 2005, Gordon, J.).
The pleading in the cited cases are identical to the present matter. The board is moving to strike the counts against it only, and it does not challenge the legal sufficiency of the actions as to O'Brien. As a result, the court must deny the motion to strike counts three and seven and will examine the substantive arguments as to counts one and four only.
IV COUNT ONE: DEFAMATION
The board urges the court to grant the motion to strike as to the defamation claim in count one because it argues that it is immune from liability under General Statutes § 52-557n(a)(2)(A). The board argues that it cannot be liable for the intentional torts of its employees and that the defamation claim against the board is based on O'Brien's actions. In response, the plaintiff argues that governmental immunity does not bar intentional tort claims because "under the common law, a governmental body is not immune from suit for the wanton acts of its agents." Moreover, the plaintiff argues that the Connecticut Supreme Court has questioned whether § 52-557n was "intended to displace common law exemptions from governmental immunity, including the exception for wanton acts" and that O'Brien's actions were "clearly wanton." In a reply brief filed on January 26, 2010, the board claims that the plaintiff misstates some of the case law and reasserts its argument that § 52-557n(a)(2) prohibits the board's liability with regard to these counts.
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered an injury as a result of the statement." (Citations omitted; internal quotation marks omitted.) Cweklinsy v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). Defamation is an intentional tort. See, e.g., Miller v. Egan, 265 Conn. 301, 332, 828 A.2d 549 (2003).
"As a matter of Connecticut's common law, the general rule . . . is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity . . . Our legislature has, however, acted to limit governmental immunity in certain circumstances. For example . . . [t]he legislature . . . has set forth general principles of municipal liability and immunity in . . . § 52-557n . . . and subsection (a)(1)(A) of § 52-557n clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents . . . and permits a tort claimant to bring a direct cause of action in negligence against a municipality. [Under § 52-557n(a)(2), however,] [t]hat abrogation of common-law immunity is not . . . limitless . . ." (Citations omitted; internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 334-36, 984 A.2d 684 (2009).
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 . . ." Subsection (a)(2) of § 52-557n provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, malice or wilful misconduct . . ." (Emphasis added.) "Wilful misconduct has been defined as intentional conduct . . . While [courts] have attempted to draw definitional boundaries between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing." (Internal quotation marks omitted.) Bhinder v. Sun Co., 246 Conn. 223, 242 n. 14, 717 A.2d 202 (1998).
In Pane v. Danbury, 267 Conn. 669, 685-86, 841 A.2d 684 (2004), the Connecticut Supreme Court upheld a trial court's decision to grant a motion for summary judgment in favor of the city on an intentional infliction of emotional distress claim because it concluded that the city could not be liable for the intentional act of its employee under § 52-557n(a)(2)(A). In O'Connor v. Board of Education, 90 Conn.App. 59, 877 A.2d 860 (2005), the court reached a similar conclusion and noted: "The plaintiff asserts several arguments in an effort to avoid the preclusive effect of § 52-557n(a)(2). He argues that this statutory provision applies only to the intentional torts of employees, but not to the conduct of municipalities. That argument lacks merit. It is axiomatic that a government subdivision can act only through natural persons as its agents or employees . . . The plaintiff also contends that municipalities are not immune from claims for intentional torts because of the common-law rule that governmental immunity does not exempt from liability for a personal injury resulting from a wanton act or a nuisance . . . That argument also fails because although § 52-557n codified portions of the law on immunity available to municipalities, the statute overrode the common-law rule by providing immunity for wilful and wanton acts. Thus, we look to the statute for guidance and not to prior decisional law that was based on then contemporary common law." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 65-66.
In the present matter, the plaintiff does not dispute that defamation is an intentional tort, nor does the plaintiff dispute that this claim is based on O'Brien's conduct. Rather, the plaintiff argues that O'Connor held that "§ 52-557n was intended to displace common law exemptions from governmental immunity, including the exemption for wanton acts" but that "[t]his conclusion was called into question by [the recent case of] Grady [ v. Somers, 294 Conn. 324, 984 A.2d 684 (2009)], which holds that § 52-557n was not intended to displace common law exemptions to governmental immunity." The plaintiff overstates Grady, which is readily distinguishable from O'Connor. Grady held that "the identifiable person, imminent harm common-law exception to municipal employees' qualified immunity . . . applies in an action brought directly against municipalities pursuant to § 52-557n(a)(1)(A), regardless of whether an employee or officer of the municipality also is a named defendant." Id., 348. Thus, it dealt with a different exception to governmental immunity, the imminent harm exception, and the imminent harm exemption does not conflict with any of the statutory exceptions to municipal liability set forth in 52-557n(a)(2). In contrast, the common-law exemption for wanton acts directly conflicts with the plain text of 52-557n(a)(2)(A), which states that municipalities are not liable for the wilful acts or omissions of their employees. Consequently, consistent with O'Connor, the legislature intended to override the common-law exemption for wanton and wilful acts when it drafted 52-557n(a)(2)(A). The court grants the motion to strike count one as the plaintiff has alleged that O'Brien engaged in intentional acts for which the board cannot be held liable under § 52-557n(a)(2)(A).
V COUNT FOUR: NEGLIGENT RETENTION AND SUPERVISION A Discretionary or Ministerial Conduct
The board argues that the plaintiff's negligent retention and supervision claim in count four should be stricken because it is barred by governmental immunity. Specifically, the board argues that § 52-557n(a)(2)(B) establishes that "both municipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." The board asserts that its eventual decision to terminate O'Brien "without a doubt, entailed the exercise of judgment and discretion." Moreover, the board points to the plaintiff's own allegation that the board was totally unaware of O'Brien's actions and the reasons for the plaintiff's resignation. In his memorandum in opposition to the board's motion to strike, the plaintiff argues that this claim is not barred by governmental immunity because it falls within the "ministerial exception" to governmental immunity. In particular, the plaintiff argues that the board has ministerial duties under General Statutes §§ 10-157 and 10-220 to "properly supervise the superintendent." Additionally, the plaintiff maintains that even if certain aspects of the board's duty to supervise are not ministerial, those aspects became ministerial once the board had knowledge of "the danger O'Brien posed to the plaintiff" under Grignano v. Milford, 106 Conn.App. 648, 943 A.2d 507 (2008). In its reply memorandum, the board asserts that § 10-157 simply outlines the board's duty to hire a superintendent and that § 10-220 merely requires the board to "adhere to certain teacher hiring and termination requirements," and that neither statute outlines the board's duty with regard to the supervision and retention of superintendents.
Paragraph 19 of the second amended complaint provides: "On August 18, 2008, the town's local newspaper, the Torrington Register Citizen, reported that the Chairman of the Board of Education was `taken completely by surprise by the resignation of Torrington High School Principal John G. Metallo [on August 15, 2008], not knowing about it until questioned by a reporter.' The Chairman, Paul E. Cavagnero, was quoted as stating: `It's all in the hands of Dr. O'Brien. The Board is completely unaware of any reasons why Dr. Metallo handed in his resignation.'"
As previously mentioned, § 52-557n(a)(2) provides immunity for municipalities and their employees in certain situations. Specifically, § 52-557n(a)(2)(B) provides that: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." "The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 48-49, 881 A.2d 194 (2005).
In Gervais v. West Hartford Board of Education, Superior Court, judicial district of Hartford, Docket No. CV 95 0555396 (July 25, 1996, Lavine, J.) ( 17 Conn. L. Rptr. 383, 385), the court concluded that "[c]onsiderations of who to hire, how to train such people, and how to supervise employees are decisions requiring the use of judgment and discretion." Moreover, at least one trial court has held that discharging a public school employee also constitutes a discretionary act: "The defendants were engaged in a discretionary act when they decided to discharge the plaintiff. A decision to terminate employment requires substantial use of judgment, and is not a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. While Connecticut appellate courts have not directly addressed the application of governmental immunity to allegations arising out of a school employee termination, some courts have addressed the issue in the context of police supervisory operations. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988) (`the great weight of authority [holds] that the operation of a police department is a discretionary governmental function'); Coletosh v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 97 0573462 (April 13, 1999, Wagner, J.T.R.) ( 24 Conn. L. Rptr. 399) (citing cases for proposition that `[t]he acts or omissions alleged in the plaintiff's complaint — negligent failure to instruct, supervise, control and discipline Hartford police officers — appear to be discretionary or governmental acts as a matter of law')." Celotto v. Brady, Superior Court, judicial district of New Haven, Docket No. CV 06 5003279 (May 14, 2008, Bellis, J.)
Section 10-157 describes a superintendent's relationship to its local school board and provides in relevant part: "(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. Employment of a superintendent shall be by election of the board of education . . . The board of education shall evaluate the performance of the superintendent annually in accordance with guidelines and criteria mutually determined and agreed to by such board and such superintendent." Section 10-220 provides in relevant part: "(a) Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state as defined in Section 10-4a and provide such other educational activities as in its judgment will best serve the interests of the school district; provided any board of education may secure such opportunities in another school district in accordance with provisions of the general statutes and shall give all the children of the school district as nearly equal advantages as may be practicable; shall provide an appropriate learning environment for its students . . ." Combined, the two statutes do not set forth a specific ministerial duty on the part of the board relative to the termination of a superintendent.
As previously noted, the plaintiff argues that even if §§ 10-157 and 10-220 do not establish the board's ministerial duty to supervise and terminate O'Brien, Grignano v. Milford, supra 106 Conn.App. 648, and § 10-220 provide that the board's duty became ministerial once it learned of the danger that O'Brien posed to the plaintiff. In particular, the plaintiff argues that the board has a "ministerial duty to follow statutory law regarding the plaintiff's termination and the events that occurred following his termination, pursuant to § 10-220." In Grignano, the issue before the court was whether the trial court properly granted summary judgment on the ground that a personal injury claim was barred by governmental immunity. Although the court ultimately affirmed the trial court's decision because of an evidentiary issue, it also noted: "In this case, the duty of the defendant to inspect and to maintain its property is, as we have explained, discretionary in nature. The court improperly concluded, however, that the discretionary nature of that predicate activity rendered the subsequent duty to warn invitees of known hazards equally discretionary. Once an initial determination of an unsafe condition is made, § 16-173 of the Milford Code of Ordinances requires some sort of preceding thought process and decision that falls well short of the type of policy decision usually afforded protection by the doctrine of governmental immunity." (Internal quotation marks omitted.) Id., 659-60.
In his complaint and in his memorandum in opposition, the plaintiff refers to his "termination," arguing that he was effectively terminated even though he resigned.
In the present matter, the allegedly applicable statutes, other than requiring the annual evaluation of the superintendent's performance, do not prescribe or address the board's duties with regard to supervising or terminating a superintendent, and Gervais and Celotto are persuasive. Moreover, Grignano is inapplicable to the present facts because nothing in § 10-220 requires the board to take specific steps while terminating or supervising a superintendent. It was the applicable ordinance in Grignano which required additional obligations on the part of the board and is therefore distinguishable. In fact, a review of the text of § 10-220 finds that it barely refers to superintendents. The board's supervision and retention of O'Brien as alleged by the plaintiff is the type of discretionary conduct that is protected by governmental immunity and is not transformed into a ministerial duty by either §§ 10-220 or 10-157.
B Imminent Harm Exception
Alternatively, the plaintiff argues that even if the board's actions were discretionary, the board is not protected by governmental immunity because the factual allegations place the plaintiff within the identifiable person, imminent harm exception to qualified immunity. The board asserts that the imminent harm exception is inapplicable under § 52-557n, making this latter claim on the grounds that: (1) the events at issue spanned several months, and thus, cannot constitute "imminent harm;" (2) the plaintiff's argument regarding foreseeable harm encompassed an entire class of foreseeable victims, and the harm alleged did not specifically identify the plaintiff; and (3) the plaintiff does not allege that the board knew or should have known that "its conduct in supervising O'Brien would subject [the] plaintiff or other employees to imminent harm."
There are "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 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, 211 Conn. 501, 505, 559 A.2d 1131 (1989); see also Doe v. Peterson, 279 Conn. 607, 615, 903 A.2d 191 (2006). In Grady v. Somers, supra, 294 Conn. 324, the court concluded that "the identifiable person, imminent harm common-law exception to municipal employees' qualified immunity also applies in an action brought directly against municipalities pursuant to § 52-557n(a)(1)(A), regardless of whether an employee or officer of the municipality also is a named defendant." Id., 348. In the present matter, the plaintiff is seeking to invoke the imminent harm exception claiming that he was an "identifiable victim." "The imminent harm exception . . . requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." (Internal quotation marks omitted.) CT Page 10774 Violano v. Fernandez, 280 Conn. 310, 329, 907 A.2d 1188 (2006). These requirements are to be "analyzed conjunctively." Doe v. Petersen, supra, 279 Conn. 620. "Demonstration of less than all of these criteria is insufficient." Id.
Imminent harm is "harm ready to take place within the immediate future." Tryon v. North Branford, 58 Conn.App. 702, 712, 755 A.2d 317 (2000). "Imminent is defined as something about to materialize of a dangerous nature . . . Imminent harm excludes risks which might occur, if at all, at some unspecified time in the future . . . In order to meet the imminent harm prong of this exception . . . the risk must be temporary and of short duration . . . Such conditions that have been identified as imminent include ice on school grounds, tripping a student in the hallway, and the immediate opening of a door." (Citations omitted; internal quotation marks omitted.) Cady v. Tolland, Superior Court, judicial district of Tolland, Docket No. CV 05 5000054 (November 30, 2006, Peck, J.). In Evon v. Andrews, supra, 211 Conn. 508, the court concluded that a potential fire was not imminent because a "fire could have occurred at any future time or not at all." Id.
"An individual may be identifiable for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition." (Internal quotation marks omitted.) Cotto v. Board of Education, 294 Conn. 265, 275-76, 984 A.2d 58 (2009). "[The] identifiable victim element . . . applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims . . . [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care . . . In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim . . . Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have also considered whether the legislature specifically designated an identifiable subclass as the intended beneficiaries of certain acts . . . whether the relationship was of a voluntary nature . . . the seriousness of the injury threatened . . . the duration of the threat of injury . . . and whether the persons at risk had the opportunity to protect themselves from harm." (Internal quotation marks omitted.) Grady v. Somers, supra, 294 Conn. 350-51. "Assuming that the imminent harm requirement had been satisfied, we emphasized that [t]he only identifiable class of foreseeable victims that we have recognized for these purposes 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 were legally required to attend school rather than being there voluntarily; their parents were thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Internal quotation marks omitted.) Id., 352.
Even reading the complaint in light most favorable to the plaintiff and considering the elements of this exception conjunctively, the court is not persuaded that the complaint alleges "imminent" harm or that the plaintiff was an "identifiable victim." The plaintiff alleges that O'Brien made defamatory statements over the course of several months, from August 2008, to November 2008. He does not identify a single action as establishing the harm but argues that all of the actions collectively over the course of this time period, and even earlier, constitute imminent harm. These allegations fall outside the definition of "imminence" and the requirement that imminent harm must be "temporary and of a short duration."
This same reasoning also supports the conclusion that the plaintiff was not an individually identifiable victim because, in order to constitute such a victim, the harm must "occur within a limited temporal and geographical zone, involving a temporary condition." Once again, there is nothing temporary about the actions of which the plaintiff complains.
Finally, the plaintiff does not fall within a narrowly defined class of identifiable victims. Our courts have not recognized public teachers and principals as a foreseeable class of victims. The plaintiff's reliance on Grady to support his argument in this regard is misplaced as in discussing the identifiable victim element, the Grady court specifically noted that it considered such an element on the assumption that "the imminent harm requirement had been satisfied."
Such is not the case here. Since the complaint fails to allege "imminent" harm, or that the plaintiff was an "identifiable victim," the court need not reach the issue of whether the complaint establishes that there was "a public official to whom it [was] apparent that his or her conduct [was] likely to subject [the plaintiff] to that harm."
In sum, because the allegations of the complaint relative to the board's supervision and retention of O'Brien address discretionary acts for which governmental immunity applies, and the conduct alleged does not fall within the imminent harm exception to governmental immunity, the court grants the motion to strike count four.
VI CONCLUSION
For the foregoing reasons, the court grants the motion to strike as to counts one and four and denies the motion to strike as to counts three and seven.