Opinion
FBTCV166059806S
08-30-2017
Jose Nunez PPA Carmen Velez v. City of Bridgeport et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Richard E. Arnold, Judge.
This action involves the claim of injuries suffered by the minor plaintiff on November 13, 2015. The minor, a student at the Curiale School in Bridgeport, Connecticut, was participating in the recess period on the grounds of the Curiale School when he was knocked to the ground and suffered a fractured right wrist. The plaintiff claims that despite having sustained the injury, his parents were not notified of the injury, and thus, his treatment for the fractured wrist was delayed.
The plaintiff's complaint contains four counts. The First Count alleges negligence as to the City of Bridgeport. The Second Count claims indemnification pursuant to General Statutes § 7-101a. The Third Count alleges negligence as to the Bridgeport Board of Education and Frances Rabinowitz, the Superintendent of Schools. The Fourth Count, again, alleges indemnification pursuant to General Statutes § 7-101a.
The defendants have filed their answer to the plaintiff's complaint which also contains five special defenses. The Fourth Special Defense claims that any acts of which the plaintiff complains implicate the discretion of the defendants, and the defendants are protected by governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B). The Fifth Special Defense alleges that if the minor plaintiff was injured as alleged, his injuries were caused by the act of someone other than an employee, officer or agent of the City of Bridgeport for which Bridgeport and the defendant Rabinowitz are not liable pursuant to General Statutes § 52-557n(b)(6).
The defendant, City of Bridgeport, has filed a motion for summary judgment dated March 13, 2017, as to the First and Second Counts of the plaintiff's complaint directed to the City alleging negligence and statutory indemnification. The City claims there are no genuine issues of material fact as to the application of the defense of governmental immunity as to the First Count alleging the City was negligent. The City argues that, as governmental immunity applies to the First Count, there is no liability on the Second Count. Moreover, General Statutes § 7-101a does not provide for a direct action, and further, the plaintiff has not named an employee who might be indemnified. In support of its motion, the City has submitted a memorandum of law and exhibits, which include sworn affidavits, the transcript of the plaintiff's deposition, medical records excerpts and photographs of the playground area at the Curiale School.
The plaintiff has filed an objection to the motion for summary judgment arguing that the City's claim of governmental immunity should be defeated by the identifiable person imminent harm exception to governmental immunity. The plaintiff has submitted a memorandum of law in support of his objection. The plaintiff has not submitted any documentation or counter-affidavits. Oral argument on the motion for summary judgment was heard on June 13, 2017.
I
Standard of Law: Summary Judgment
The standard of law for a motion for summary judgment is well-established. Summary judgment may be granted under Practice Book § 17-49 of the Practice Book 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. " A material fact is a fact that will make a difference in the result of the case . . . the party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005). Once the moving party has presented evidence in support of a motion for summary judgment, the burden shifts to the opposing party to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Fernandez v. Standard Fire Ins. Co., 44 Conn.App. 220, 222, 688 A.2d 349 (1997); State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988).
To oppose a motion for summary judgment, a party must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence and is not rebutted by bald assertions. To oppose a motion for summary judgment successfully, the non-movant must recite specific facts which contradict those stated in the movant's affidavits and documents. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663, 691 A.2d 1107 (1997); 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 567, 636 A.2d 1377 (1994); State v. Goggin, supra, 616. When the non-moving party makes no motion in opposition to summary judgment or recites no specific facts to contradict the facts stated in the motion for summary judgment, the court has to rely on the facts stated in the movant's affidavit as being undisputed. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d 115 (1983). In deciding whether there is a material issue of fact, the court considers the evidence in the light most favorable to the non-moving party. Fernandez v. Standard Fire Ins. Co., supra, 222; Connell v. Colwell, 214 Conn. 242, 247, 571 A.2d 116 (1990). Our Appellate Court has approved the practice of deciding the issue of governmental immunity as a matter of law. Jahn v. Board of Education of Monroe, 152 Conn.App. 652, 658, 99 A.3d 1230 (2014).
II
Discussion
The defendant, the City of Bridgeport, has moved for summary judgment on the First Count on the basis that governmental immunity applies and on the Second Count, which is based on General Statutes § 7-101a, an indemnification statute, because the City does not need to indemnify an employee who is immunized from liability.
On November 13, 2015, the minor plaintiff was a nine-year-old, fourth-grade student at the Curiale School. He was on the playground participating in a recess period that was being monitored by authorized employees of the City. There were three to four classes on the playground consisting of approximately sixty-six (66) children. The minor plaintiff was playing basketball with his friends. At that time, another fourth grade student, Deon Mitchell, was also playing basketball with his friends approximately twelve (12) to fourteen (14) feet away from the plaintiff. After a brief conversation with the plaintiff, Mitchell ran to the plaintiff to try and get the basketball from the plaintiff. In doing so, he ran into the plaintiff pushing or bumping the plaintiff to the ground. The plaintiff fell on his right hand and sustained an injury. The time lapse between the time Mitchell came over to the plaintiff and the time that the plaintiff fell to the ground was " three seconds" according to the plaintiff's testimony. There were two teachers on the playground. One teacher was nine feet from where the incident occurred and the other teacher was on her phone. Neither teacher saw the incident. The plaintiff immediately complained to one of the teachers that Mitchell had pushed him to the ground. The teacher sent the plaintiff to see the school nurse.
There is a question as to whether the acts of Mitchell were intentional, as the plaintiff and Mitchell had experienced verbal confrontations previously.
When the plaintiff arrived at the school nurse's office he complained about his right wrist. The nurse examined the wrist, which did not appear swollen and applied an ice pack. The plaintiff requested to call his mother, and although the nurse said she would call the plaintiff's mother, she did not. The plaintiff returned to his classroom and was subsequently denied permission to go home. At the end of the school day, the plaintiff was picked up at the school by his father. The plaintiff did not complain to his father that his wrist hurt, and the plaintiff explained that at that time, his wrist did not hurt. Later that afternoon, the plaintiff told his mother about the incident and that his wrist was now hurting. His mother took him to the hospital where an examination revealed that the plaintiff had sustained a " closed buckle fracture of the distal end of radius." The plaintiff was given a flexible cast and was released from the hospital.
The following principles of governmental immunity are pertinent to the resolution of the claims raised by the City in its motion for summary judgment. " 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.) Violano v. Fernandez, 280 Conn. 310 318-20, 907 A.2d 1188 (2006).
" Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that--despite injury to a member of the public--the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing, liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Citations omitted; internal quotation marks omitted.) Id., 318-19; Doe v. Petersen, 279 Conn. 607, 614-15, 903 A.2d 191 (2006).
" There are three exceptions to discretionary act immunity." " Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity--to encourage municipal officers to exercise judgment--has no force . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." (Citations omitted; internal quotation marks omitted.) Id., at 319-20.
" The tort liability of a municipality has been codified in § 52-557n." Section 52-557n(a)(1) provides that " [e]xcept 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 . . ." Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by " 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." Id., 320.
The plaintiff concedes that he has not alleged that the acts or omissions of the City were ministerial in nature. The plaintiff argues that the identifiable victim subject to imminent harm exception to governmental immunity applies in this matter. Thus, the plaintiff agrees that the allegations against the defendants implicate discretionary acts, in that the plaintiff alleges that the defendants (a) failed to properly hire and/or train the persons to whom they assigned the task of supervising minor children in their care . . .; (b) failed to properly supervise the persons to whom they assigned to monitor the students during recess; (c) failed to have in place an adequate number of employees to monitor the students during recess; (d) failed to properly evaluate the safety issues involving playground activities; and (e) failed to notify the minor plaintiff's parents of the injury in a timely manner.
The parties agree, as the plaintiff was a school student attending the Curiale School during regular school hours, he was an identifiable person. Texidor v. Thibedeau, 163 Conn.App. 847, 862, 137 A.3d 765, cert. denied, 321 Conn. 918, 136 A.3d 1276 (2016). " The imminent harm exception to discretionary act immunity [for municipalities and their employees] applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test 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 . . . We have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception. The ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [in which case] resolution of those factual issues is properly left to the jury." (Citations omitted.) Strycharz v. Cady, 323 Conn. 548, 573-74, 148 A.3d 1011 (2016).
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. Haynes v. Middletown, 314 Conn. 303, 322-23, 101 A.3d 249 (2014). This analysis focuses not on the duration of the alleged dangerous condition but on the magnitude of the risk the condition created. (Emphasis in original.) Id., 322.
In Williams v. Housing Authority, 159 Conn.App. 679, 705-06, 124 A.3d 537 (2015), cert. granted, 319 Conn. 947, 125 A.3d 528 (2015), the Appellate Court observed: " [A]s we view Haynes, in order to qualify under the imminent harm exception, a plaintiff must satisfy a four-pronged test. First, the dangerous condition alleged by the plaintiff must be 'apparent to the municipal defendant.' We interpret this to mean that the dangerous condition must not be latent or otherwise undiscoverable by a reasonably objective person in the position and with the knowledge of the defendant. Second, the alleged dangerous condition must be likely to have caused the harm suffered by the plaintiff. A dangerous condition that is unrelated to the cause of the harm is insufficient to satisfy the Haynes test. Third, the likelihood of the harm must be sufficient to place upon the municipal defendant a 'clear and unequivocal duty' to alleviate the dangerous condition. The court in Haynes tied the duty to prevent the harm to the likelihood that the dangerous condition would cause harm. Thus, we consider 'a clear and unequivocal duty' to be one that arises when the probability that harm will occur from the dangerous condition is high enough to necessitate that the defendant act to alleviate the defect. Finally, the probability that harm will occur must be so high as to require the defendant to act immediately to prevent the harm." (Internal citations omitted.) Id.; Haynes v. Middletown, supra, 314 Conn. 321-23.
Our Supreme Court granted certification in Williams v. Housing Authority, 159 Conn.App. 679, 124 A.3d 537 (2015). It was argued before the Connecticut Supreme Court on January 19, 2017. It has not been decided as of the date of this Memorandum of Decision. The plaintiff argues that the four-pronged test in Williams should not be considered by this court until the Supreme Court issues its decision. The defendant agues that in the alternative, the standards set forth in Haynes v. Middletown, supra, 314 Conn. 303, should apply.
The defendants argue that the " condition" in this case was Mitchell, who pushed into the plaintiff causing the plaintiff to fall to the ground and to sustain the injury to his wrist. The defendants argue that there was nothing objectively or subjectively dangerous about Mitchell's behavior before he pushed the plaintiff. While there may have been words exchanged between Mitchell and the plaintiff prior to the push, any such words were not heard by the teachers on a noisy playground, even though they were positioned a short distance away. There also was nothing in Mitchell's past that teachers were aware of, that might lead them to suggest that Mitchell would deliberately push the plaintiff. Thus, there was no clear and unequivocal duty to alleviate a " dangerous condition." Moreover there was nothing the teachers could do to alleviate the condition and prevent the push, as the incident happened in a matter of seconds. Lastly there was no indication that Mitchell set out to break the plaintiff's wrist, as the push by Mitchell was during the act of trying to grab a basketball from the plaintiff.
Lastly, the defendants argue that the failure of the nurse to immediately call the plaintiff's parents was the act of the nurse using her professional judgment after having examined the plaintiff. She determined that the plaintiff's range of motion in his wrist was good. She gave him an ice pack and returned him to his classroom. These decisions did not expose the plaintiff to imminent harm as witnessed by the fact that the plaintiff did not complain to his father when his father picked him up at the end of the school day. The plaintiff's own explanation was that his wrist did not hurt at that time.
The school nurse is not a named defendant. There is no medical negligence claim in this matter, which would require compliance with General Statutes § 52-190a and General Statutes § 52-184c.
Regarding the second count, the plaintiff seeks to impose liability on the City pursuant to General Statutes § 7-101a which provides in relevant part: " (a) Each municipality shall protect and save harmless any municipal officer whether elected or appointed, of any board, committee, council, agency or commission, . . . or any municipal employee, of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence . . . on the part of such officer or such employee while acting in the discharge of his duties."
The defendants argue that the plaintiff's claim fails for three reasons. First, the plaintiff has failed to name an individual employee of the City against whom there could be a claim, demand or suit in these proceedings. " Read as a whole, § 7-101a refutes a construction affording the defendants the immunity they seek, because the section demonstrates, in its remaining subsections, that the transactions that the legislature sought to address were transactions in which an injured third person was seeking relief from a municipal employee and, indirectly, from a municipality itself." City of Norwich v. Silverberg, 200 Conn. 367, 371, 511 A.2d 336 (1986). Second, a judgment must be rendered against a municipal employee before he is entitled to relief. This has not and cannot happen here. Third, General Statutes § 7-101a " does not provide a direct cause of action against a municipality." Karbowicz v. Borough of Naugatuck, 921 F.Supp. 77, 78 (D.Conn. 1995); see also Schoell v. Town of Hebron, Superior Court, judicial district of New London No. CV156025460 (July 29, 2016, Bates, J.) 62 Conn. L. Rptr. 753, (" While our appellate courts have not specifically ruled on this issue, the great weight of Superior Court authority holds that § 7-101a does not provide an independent cause of action for a plaintiff who is not a municipal employee").
The plaintiff, in objecting to the motion for summary judgment, argues the standard set forth in Haynes v. Middletown, supra, 314 Conn. 303 applies. The plaintiff notes that by way of a sworn affidavit, Judy Boutros, one of the two teachers on the playground when the incident occurred, affirms she was a substitute teacher on that date and was supervising approximately sixty-six (66) children. She affirms she did not see the incident take place. It's the plaintiff's position that with that many young children running around a playground, the potential for harm was immediate. This was a recess period, so the risk of harm was temporary and of short duration. Therefore, it should have been apparent to the City and its agents that the failure to properly hire and train persons; the failure to supervise those employees assigned to monitor recess; the failure to have an adequate number of employees assigned to recess duty; and the failure to evaluate playground safety issues were so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm to the plaintiff and others similarly situated.
Although the plaintiff is an identifiable victim, in order for the " imminent harm" exception to apply, the plaintiff must also establish that the harm alleged was imminent and apparent to the defendants. Based on the undisputed facts, the plaintiff has failed to establish these elements of this exception to the governmental immunity doctrine.
As noted earlier herein, " [t]he 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 to immediately prevent the harm." Haynes v. Middletown, supra, 314 Conn. 322-23. This standard focuses not " on the duration of the alleged dangerous condition, but on the magnitude of the risk that the condition created." (Emphasis in original.) Id., 322. Our Appellate Court, in interpreting the new imminent harm test, " consider[ed] a clear and unequivocal duty . . . to be one that arises when the probability that harm will occur from the dangerous condition is high enough to necessitate that the defendant act to alleviate the defect." (Citation omitted; emphasis in original; internal quotation marks omitted.) Williams v. Housing Authority, 159 Conn.App. 679, 706, 124 A.3d 537, cert. granted on other grounds, 319 Conn. 947, 125 A.3d 528 (2015). The court emphasized that " the probability that harm will occur must be so high as to require the defendant to act immediately to prevent the harm." (Emphasis in original.) Id.
The " leading Supreme Court cases on the " apparentness" prong of the identifiable person-imminent harm exception are Strycharz v. Cady, supra, 323 Conn. 548; and Edgerton v. Clinton, 311 Conn. 217, 231, 86 A.3d 437 (2014)." Andrews v. City of Shelton, Superior Court, judicial district of Ansonia-Milford at Milford. AANCV156019773S, (February 8, 2017, Stevens, J.) " [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 . . . Under that standard, [courts] do 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." (Citation omitted; internal quotation marks omitted.) Strycharz v. Cady, supra, 323 Conn. 589. Additionally, the court " do[es] not consider what the government agent could have discovered after engaging in additional inquiry." Edgerton v. Clinton, supra, 311 Conn. 231.
" Although the 'imminency' and 'apparentness' of the harm are separate elements of the identifiable person-imminent harm exception to governmental immunity, as presented by the parties, the facts relating to these issues are interrelated in the present case. Indeed, in most cases, if the court concludes that a plaintiff has failed to show the existence of an imminent danger, the court must also conclude that there was no imminent danger that could have been apparent to the public official." Andrews v. City of Shelton, supra, Superior Court, judicial district of Ansonia-Milford at Milford. AANCV156019773S .
In support of the motion for summary judgment, the defendant has presented deposition testimony and affidavit testimony that City employees had no knowledge of any problems or conflicts between the plaintiff and Deon Mitchell. They also assert that they were unaware of any incidents that would have indicated Mitchell was likely to strike or push the plaintiff, and that they had no warning that Mitchell would push or bump the plaintiff on that day. The push or bump by Mitchell was also unexpected and sudden with the incident lasting approximately several seconds. Based on the documentary submissions to the court, the defendant City maintain that the undisputed facts establish that the attack was not a danger that was either imminent or apparent. The fact that the plaintiff and Mitchell may have had verbal disagreements in the past fails to demonstrate the existence of any genuine issue of material fact on the issues of imminence and apparentness. Andrews v. City of Shelton, supra, Superior Court, judicial district of Ansonia-Milford at Milford. AANCV156019773S .
Specifically, as to the issue of imminency, the plaintiff has shown nothing indicating that the probability or likelihood of the plaintiff being pushed or bumped to the ground when Mitchell went to grab the basketball from the plaintiff, was so " high as to require the defendant[s] to act immediately to prevent harm." (Emphasis in original.) Williams v. Housing Authority, supra, 159 Conn.App. 706. As to the issue of apparentness, the court must look at the information available to the defendant City, and the plaintiff has pointed to nothing indicating that the " circumstances would have made it apparent to a reasonable [school official] that harm was imminent." Strycharz v. Cady, supra, 323 Conn. 589.
Thus, the court agrees with the defendant that the governmental immunity doctrine applies and that the plaintiffs have not shown the applicability of the identifiable person-imminent harm exception to this doctrine. The court grants summary judgment to the City as to the first count.
Because governmental immunity under § 52-557n(a)(2)(B) precludes the plaintiffs' negligence claims, the second count of the complaint seeking " indemnity" § 7-101a must also fail. " For a plaintiff to prevail on an indemnification claim against a municipality, he or she must first allege and prove in a separate count that an employee of the municipality was negligent." Texidor v. Thibedeau, supra, 163 Conn.App. 865. Additionally, courts have held that General Statutes § 7-101a only requires indemnification for a municipal employee from its municipal employer and does not provide a right of action by a plaintiff against the municipality itself. Nemec v. Ansonia, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-15-6018817-S (September 29, 2016, Stevens, J.); accord Schoell v. Hebron, supra, Superior Court, judicial district of New London, Docket No. CV-15-6025460-S (July 29, 2016, Bates, J.) [62 Conn. L. Rptr. 753, ].
Conclusion
Therefore, for the reasons set forth herein, the defendant City of Bridgeport's motion for summary judgment is granted as to the First and Second counts of the plaintiff's complaint. The plaintiffs' objection to the motion is overruled.