Opinion
CV146049904S
06-07-2016
Mary Rajeh v. Hamden Board of Education
UNPUBLISHED OPINION
MEMORANDUM OF DECISION IN RE MOTION TO STRIKE #113
Brian T. Fischer, J.
FACTS
On September 15, 2014, the plaintiff, Mary Rajeh, on behalf of her minor daughter, Sahrah Rajeh (Sahrah), commenced this action against the defendants, the Hamden Board of Education (board) and the town of Hamden (town), arising out of the defendants' alleged failure to prevent Sahrah from being subjected to repeated acts of bullying while she was a student at Hamden Middle School. The plaintiff filed the operative pleading, a revised complaint, on January 29, 2015, alleging claims against the defendants for violations of her right to a free public education guaranteed under article eighth, § 1, of the Connecticut constitution (counts one and two); intentional infliction of emotional distress (counts three and four); reckless infliction of emotional distress (counts five and six); negligent infliction of emotional distress (counts seven and eight); and negligence (counts nine and ten).
For purposes of clarity and convenience, the court refers to Mary Rajeh throughout this memorandum as the plaintiff and Sahrah Rajeh as Sahrah.
The town and the board are collectively referred to throughout this memorandum as the defendants where necessary.
Article eighth, § 1, of the Connecticut constitution provides: " There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation."
The plaintiff alleges the same causes of action against the board and the town.
In support of these claims, the plaintiff alleges the following facts. At all relevant times, Sahrah was a student at Hamden Middle School (school). During Sahrah's eighth grade year, she was repeatedly subjected to acts of bullying by other students. Specifically, the other students called her names, spread rumors about her, physically pushed her in the hallways, and harassed her through electronic means. The plaintiff and Sahrah reported each incident of bullying to school officials who, despite being made aware of the bullying, " did nothing to prevent [it]." Every one of the plaintiff's attempts to alert school officials of the bullying was ignored and the board denied that any bullying had occurred. This sort of inaction " appears to be a longstanding procedure of the school system." As a result of the bullying, Sahrah suffers from severe emotional distress, which has lead to social anxiety, panic attacks, and lowered self-esteem and self-confidence. Sahrah has attested to inflicting harm on herself and having thoughts of suicide. She was hospitalized for several weeks due to her emotional distress and remains under a psychiatrist's care. Sahrah's psychiatrist opined that her psychiatric issues were caused by the bullying as well as the board's failure to respond to the bullying. The board has not taken any corrective action to address the bullying. The defendants' conduct was an " intentional and/or . . . reckless disregard" of Sahrah's constitutional rights, as well as various tort laws, " in that the [d]efendants repeatedly refused to address the [bullying and] allow[ed] it to continue despite complete knowledge [of the bullying]." The plaintiff seeks money damages to redress her economic losses and Sahrah's mental suffering.
On January 19, 2016, the defendants moved to strike all ten counts of the plaintiff's revised complaint, on grounds that (1) they are entitled to sovereign immunity; (2) they are entitled to statutory immunity under General Statutes § 10-222l and § 5131.911(t) of the Regulations of the Hamden Board of Education; (3) they are entitled to qualified immunity pursuant to General Statutes § 52-557n as to the plaintiff's claims for intentional and reckless infliction of emotion distress; (4) the plaintiff's constitutional claims fail to allege sufficient facts upon which relief may be granted; (5) the plaintiff's claims for intentional infliction of emotional distress fail to allege sufficient facts upon which relief may be granted; (6) Connecticut law does not recognize a cause of action for reckless infliction of emotional distress; and (7) the town owed no duty to the plaintiff to provide a safe school environment. The plaintiff filed an objection on April 7, 2016. The matter was heard at short calendar on April 11, 2016.
General Statutes § 10-222l provides in relevant part: " (c) No claim for damages shall be made against a local or regional board of education that implements the safe school climate plan, described in section 10-222d, and reports, investigates and responds to bullying, as defined in said section 10-222d, if such local or regional board of education was acting in good faith in the discharge of its duties. The immunity provided in this subsection does not apply to acts or omissions constituting gross, reckless, wilful or wanton misconduct."
Section 5131.911(t) of the Regulations of the Hamden Board of Education provides: " Members of the [b]oard of [e]ducation and school employees are protected by statute against damage claims in the implementation of a safe school climate plan and, in accordance with a school district safe school climate plan, report, investigate, or respond to bullying. PA 11-232 also extends this immunity to reports of bullying incidents by parents, students, and others to a school employee according to a safe school climate plan. To be immune, these parties must act in good faith and, in the case of a school employee or [b]oard of [e]ducation, within the scope of their duties. The immunity does not cover gross, wanton, reckless, or willful misconduct."
General Statutes § 52-557n provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . 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]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . ."
DISCUSSION
I
MOTION TO STRIKE STANDARD
" 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). " [I]n determining the sufficiency of a complaint . . . all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). On the other hand, a motion to strike " does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Therefore, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hosp., 308 Conn. 338, 349, 63 A.3d 940 (2013).
II
SOVEREIGN IMMUNITY
The defendants first argue that, " to the extent the plaintiff is claiming the defendants violated any laws, statutes, ordinances or regulations concerning [the duty to address] bullying, " they are entitled to sovereign immunity. In support of this claim, the defendants interpret the plaintiff's revised complaint as alleging that the defendants violated their statutory duties under General Statutes § 10-222d to implement a safe school climate plan to prevent school bullying. The defendants claim that, in enacting § 5131.911 in order to comply with the mandates set forth in § 10-222d, they were acting in accordance with a state directive, thereby rendering them state actors and entitling them to sovereign immunity. The defendants also assert that § 10-222d was not intended to create a private cause of action or to provide a basis for circumventing sovereign immunity.
General Statutes § 10-222d provides in relevant part: " (b) Each local and regional board of education shall develop and implement a safe school climate plan to address the existence of bullying and teen dating violence in its schools. Such plan shall . . . (3) require school employees who witness acts of bullying or receive reports of bullying to orally notify the safe school climate specialist . . . or another school administrator if the safe school climate specialist is unavailable, not later than one school day after such school employee witnesses or receives a report of bullying, and to file a written report not later than two school days after making such oral report, (4) require the safe school climate specialist to investigate or supervise the investigation of all reports of bullying and ensure that such investigation is completed promptly after receipt of any written reports made under this section and that the parents or guardians of the student alleged to have committed an act or acts of bullying and the parents or guardians of the student against whom such alleged act or acts were directed receive prompt notice that such investigation has commenced . . ."
The defendants acknowledge that § 10-222d is not pleaded anywhere in the revised complaint but apparently assume that the plaintiff's claims arise under § 10-222d because § 10-222d " specifically addresses the claims made by the plaintiff."
In opposition, the plaintiff argues that § 10-2221 and § 5131.911(t), which immunize school officials and local boards of education from claims arising from their enforcement of the safe school climate plan, provide that school officials and boards of education are only immune if they acted in good faith. According to the plaintiff, the allegations in her revised complaint establish that the defendants acted intentionally, recklessly, and not in good faith, because they were aware of the incessant bullying yet repeatedly failed to take any action to prevent or address it. Therefore, the plaintiff contends, the defendants are not entitled to sovereign immunity.
As an initial matter, it bears noting that, " [i]n general, a motion to dismiss [rather than a motion to strike] is the appropriate procedural vehicle to raise a claim that sovereign immunity . . . bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006). Nevertheless, because the defendants' argument that sovereign immunity bars the plaintiff's claims implicates subject matter jurisdiction, the court may address the issue despite the fact that it has been raised in a motion to strike. See Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003) (" the plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised " [emphasis added; internal quotation marks omitted]).
As previously explained, the defendants' claim that they are state actors entitled to sovereign immunity is premised on their interpretation of the plaintiff's claims as arising under § 10-222d. " The interpretation of pleadings is always a question of law for the court . . . [W]e long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Internal quotation marks omitted.) Byrne v. Avery Center for Obstetrics & Gynecology, P.C., 314 Conn. 433, 461, 102 A.3d 32 (2014).
In her memorandum of law, the plaintiff does not expressly dispute the defendants' characterization of her revised complaint as alleging claims under § 10-222d. Nonetheless, as the defendants acknowledge, § 10-222d is not mentioned anywhere in the revised complaint. In paragraph 5 of count one, which is incorporated into each subsequent count, the plaintiff alleges that her action " is brought pursuant to Connecticut laws and the [c]onstitution of the [s]tate of Connecticut, including its [d]ue [p]rocess [c]lause. The action claims violations of [Sahrah's] civil right to a public education under the Connecticut [c]onstitution, as well as various state tort laws . . ." Counts one and two of the revised complaint allege violations of our state constitution, and counts eight through ten assert causes of action under the common law, namely, intentional infliction of emotional distress, reckless infliction of emotional distress, negligent infliction of emotional distress, and negligence. None of these claims specifically allege that the duty owed by the defendants is derived from § 10-222d. In her memorandum of law, the plaintiff characterizes her negligent infliction of emotional distress claims as alleging that the defendants, " under the Connecticut [c]onstitution, state statutes and its own regulations, owe the [p]laintiff the duty of providing a free public education, providing a safe environment in which the [p]laintiff could learn free from harassment, abuse and bullying." With respect to her negligence claims, the plaintiff argues that the defendants " owed the [p]laintiff a duty as detailed in the [s]tate [c]onstitution and the [t]own of Hamden Regulations to provide a free public education, safe from harm and abuse in which she could learn." Even if these allusions to the defendants' " own regulations" and the " [t]own of Hamden Regulations" are references to § 5131.911, the plaintiff also makes broader references in her revised complaint and memorandum of law to " various state tort laws, " " Connecticut laws, " and " state statutes." In context, therefore, any implicit reference by the plaintiff to § 10-222d or § 5131.911 may be construed simply as providing two of several bases for establishing the duty of care owed to the plaintiff, and not as asserting an independent cause of action under § 10-222d or § 5131.911. See id. Accordingly, the revised complaint has not pleaded a cause of action under § 10-222d or § 5131.911, obviating any need to determine whether those sections implicate the defendants' sovereign immunity or provide statutory causes of action.
Other questions of sovereign immunity not raised in the defendants' memorandum of law, however, need to be addressed. While the defendants appear to raise sovereign immunity only to the extent that the plaintiff's claims arise under § 10-222d, an examination of our case law reveals that some of the plaintiff's constitutional and common-law claims may be barred by the doctrine. These issues call into question the court's subject matter jurisdiction, the court may address them sua sponte. See Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012).
" It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015) . " When a trial court decides a jurisdictional question . . . on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
" The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence . . ." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). Sovereign immunity does not apply, however, to suits against a municipality. " A suit against a municipality is not a suit against a sovereign. Towns have no sovereign immunity, and are capable of suing and being sued . . . in any action . . . Municipalities do, in certain circumstances, have a governmental immunity from liability . . . But that is entirely different from the state's sovereign immunity from suit . . . Accordingly, we conclude that municipalities are immune from liability only, and not from suit." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Vejseli v. Pasha, 282 Conn. 561, 573, 923 A.2d 688 (2007).
In the present case, counts two, four, six, eight, and ten of the revised complaint, which allege causes of action against the town, are not barred by the doctrine of sovereign immunity because municipalities have no sovereign immunity. Accordingly, the court does not lack subject matter jurisdiction to adjudicate these claims.
The determination of whether the plaintiff's claims against the board are barred by sovereign immunity, however, depends upon whether the board was acting as an agent of the state or an agent of the town. " A town board of education can be an agent of the state for some purposes and an agent of the municipality for others . . . A town board of education thus potentially enjoys immunity under two different theories of immunity for acts carried out within its governmental capacity. For example, [w]e have long recognized the common-law principle [of sovereign immunity] that the state cannot be sued without its consent . . . Alternatively, [a]t common law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Heigl v. Board of Education, 218 Conn. 1, 3-4, 587 A.2d 423 (1991). " To determine whether the doctrine of sovereign immunity applies to a local school board, we look to whether the action would operate to control or interfere with the activities of the state . . ." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 112, 708 A.2d 937 (1998).
On the one hand, " the furnishing of an education for the public is a state function and duty . . . This duty is placed upon the state by article eighth, § 1 of the state constitution and is delegated to local school boards by state statute . . . There is no question but that local boards of education act as agencies of the state when they are fulfilling the statutory duties imposed upon them pursuant to the constitutional mandate of article eighth, § 1 ." (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) Cheshire v. McKenney, 182 Conn. 253, 257-58, 438 A.2d 88 (1980). On the other hand, " [t]he state, in the exercise of its policy to maintain good public schools, has delegated important duties in that field to the towns . . . General Statutes § 10-240 provides . . . in [relevant] part: 'Each town shall through its board of education maintain the control of all the public schools within its limits.' . . . Local boards of education act on behalf of the municipality, then, in their function of maintaining control over the public schools within the municipality's limits ." (Citations omitted; emphasis altered; footnote omitted; internal quotation marks omitted.) Id., 258. To that end, our Supreme Court has held that a common-law negligence claim brought against a board of education, arising out of an incident in which a second grade student was tripped in an unsupervised hallway by another student, does not implicate the board's sovereign immunity because " [t]he duty to supervise students is performed for the benefit of the municipality." Purzycki v. Fairfield, supra, 244 Conn. 112.
Superior Court cases have generally recognized that local boards of education are agents of the municipality when maintaining control over school premises and protecting students from acts of bullying or other harmful conduct from other students. For example, in Straiton v. Board of Education, Superior Court, judicial district of Danbury, Docket No. CV-10-6003255-S, (March 13, 2012, Ozalis, J.), the plaintiff, a student at New Milford High School, brought claims against, inter alia, the board of education (board) and town of New Milford (town) following an incident in which she was bullied and subsequently assaulted by another student. The town moved for summary judgment on the ground that the plaintiff's claims related to the board's provision of a public education, rendering the board an agent of the state. Id. The court disagreed, concluding: " The claims asserted in this case do not relate to the 'education' given to the plaintiff. Instead, they relate to the inability of certain teachers and staff . . . to supervise and maintain control on its premises for the protection of its students. As the [board] was performing such functions within the town limits . . . it was acting as an agent of the [t]own " Id.; see also Esposito v. Bethany, Superior Court, judicial district of New Haven, Docket No. CV-06-5002923-S (February 14, 2007, Skolnick, J.) (43 Conn.L.Rptr. 7, 8 n.2, ) (sovereign immunity inapplicable to plaintiff's claims that board of education failed to protect her from bullying where complaint " implicate[d] the [board's] duties to supervise the plaintiff and her fellow students" and not its duty to provide education); Stultz v. LaRosa, Superior Court, judicial district of Rockville, Docket No. CV-94-56704-S (August 8, 1997, Klaczak, J.) (20 Conn.L.Rptr. 304, 305, ) (high school student's negligence claim against board of education, arising out of incident in which student was assaulted by another student, not subject to sovereign immunity because " defendants were acting as municipal [rather than state] employees in their role of maintaining control over students"); Scruggs v. Board of Education, United States District Court, Docket No. 3:03CV2224 (PCD), (D.Conn. August 26, 2005) (sovereign immunity inapplicable to allegation that board failed to prevent bullying by supervising students because allegation did not related to board's provision of educational services).
As the defendants note in their memorandum of law, a majority of Superior Court judges have held that boards of education are agents of the state entitled to sovereign immunity with respect to claims that are based upon violations of the anti-bullying provisions set forth in § 10-222d. See Wells v. Stoval, Superior Court, judicial district of New Haven, Docket No. CV-10-5032978-S, (June 25, 2013, Wilson, J.); Esposito v. Bethany, Superior Court, judicial district of New Haven, Docket No. CV-06-5002923-S, (May 3, 2010, Corradino, J.T.R.); Antalik v. Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV-07-5001762-S (August 13, 2008, Gallagher, J.) (46 Conn.L.Rptr. 179, 183, ); but see Hernandez v. Board of Education, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5010484-S (June 7, 2013, Sequino, J.) (56 Conn.L.Rptr. 311, 314, ). As previously explained, however, the plaintiff in the present case has not alleged any causes of action under § 10-222d. Accordingly, those cases are inapposite. See Esposito v. Bethany, supra, 43 Conn.L.Rptr. 8 n.2, .
In the present case, the plaintiff alleges in count one of the revised complaint that Sahrah had a right to a free public education under article eighth, § 1, of the Connecticut constitution, and that the board's failure to provide a safe school environment by taking action to prevent repeated instances of bullying violated this right. Because the board's enforcement of Sahrah's constitutional right to an equal public education is mandated by our state constitution, the board was acting as an agent of the state for purposes of count one. See Santoro v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-04-0488583-S (August 18, 2006, Robinson, J.) (41 Conn.L.Rptr. 850, 851, ) (" According to the plaintiff's complaint, the defendants are being sued for their alleged failure to fulfill the state constitutional requirement of the provision of equal education opportunities in public schools. Thus, the defendants are being sued in their capacity as agents of the state."). Accordingly, count one implicates the board's sovereign immunity and must be stricken.
Furthermore, count two, which alleges a constitutional claim against the town, must also be stricken because, although the court has subject matter jurisdiction over that claim, it is derivative of count one. The plaintiff alleges in paragraph 23 that the town " is legally liable for the actions of its duly elected or appointed [b]oard of [e]ducation." Count two does not contain any allegations of direct liability against the town. Accordingly, count two must be stricken.
By contrast, counts three, five, seven, and nine, which allege common-law tort claims against the board, are based upon the board's alleged failure to investigate and put a stop to the acts of bullying that were being perpetrated against the plaintiff by other students. Thus, those counts are not predicated on the board's failure to provide educational services or to comply with a state-mandated activity. Instead, they concern the ability and willingness of school officials to " to supervise and maintain control [over school] premises for the protection of [the] students." Straiton v. Board of Education, supra, Superior Court, Docket No. CV-10-6003255-S. Because the duty to supervise and maintain control over school premises is performed for the benefit of the municipality, and not the state, the board was not acting as an agent of the state for purposes of counts three, five, seven, and nine, and is not entitled to sovereign immunity as to those claims.
In paragraph 44 of count nine, the plaintiff's common-law negligence claim, she alleges that the board " had a duty to protect Sahrah during her exercise of her right to a free public education." Construing count nine in favor of exercising subject matter jurisdiction, it appears to be based on the board's duty to protect Sahrah from harm while on school premises, and not on its constitutional duty to provide a free public education.
The plaintiff's reliance on § 10-222l and § 5131.911(t) for the proposition that sovereign immunity is limited to situations where the board acts in good faith, is misplaced. By their express terms, neither § 10-222l nor § 5131.911(t) apply to a board of education's sovereign immunity from suit. Instead, they establish good faith as a prerequisite to the statutory immunity afforded to school officials and boards of education for claims arising from their enforcement of the safe school climate plan. Moreover, neither of those sections constitute a statutory waiver of the board's sovereign immunity. " [A] litigant that seeks to overcome the presumption of sovereign immunity must show that . . . the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . In making this determination, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed.
Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, supra, 284 Conn. 711-12. As noted, § 10-222l and § 5131.911(t) simply afford an additional statutory immunity for school officials and boards of education that make a good faith effort to uphold the anti-bullying rules set forth in the safe school climate plan. Nothing in the text of either section purports to abrogate sovereign immunity. See part III of this memorandum.
III
STATUTORY IMMUNITY
The defendants next contend that they are entitled to statutory immunity under § 10-222l and § 5131.911(t). In opposition, the plaintiff contends that the statutory immunity afforded by those sections does not apply because she has alleged sufficient facts to establish that the defendants failed to act in good faith.
A threshold issue is whether statutory immunity under § 10-222l and § 5131.911(t) is a proper ground for a motion to strike or should instead be pleaded as a special defense. One Superior Court judge to address the issue assumed, without deciding, that the statutory immunity set forth in § 10-222l operates similarly to the special defense of governmental immunity under § 52-557n. See C.M. v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-14-6045516-S (March 6, 2015, Nazzaro, J.) (60 Conn.L.Rptr. 105, 108, ). Thus, for purposes of determining the appropriate procedure for raising statutory immunity under § 10-222l, the court looked to whether it was apparent from the face of the complaint that the defendants were engaged in their official functions. See id. The court sees no reason not to employ a similar approach in the present case.
With respect to governmental immunity--and, by extension, statutory immunity under § 10-222l--" there are instances when it is appropriate for defendants to raise the defense . . . in the context of a motion to strike. Specifically, 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." (Internal quotation marks omitted.) Coe v. Board of Education, supra, 301 Conn. 116 n.4. Here, the revised complaint alleges that the defendants failed to protect Sahrah from repeated instances of bullying that occurred while she was an eighth grade student. Because these allegations implicate the defendants' official duties to supervise and maintain control over the school, the defendants were acting in their official capacities when the omissions complained of by the plaintiff occurred. See C.M v. Hamden, supra, 60 Conn.L.Rptr. 108. Accordingly, the court may address in this motion to strike the defendants' claim of statutory immunity.
Section 10-222l(c) provides in relevant part: " No claim for damages shall be made against a local or regional board of education that implements the safe school climate plan . . . and reports, investigates and responds to bullying . . . if such local or regional board of education was acting in good faith in the discharge of its duties. The immunity provided in this subsection does not apply to acts or omissions constituting gross, reckless, wilful or wanton misconduct." (Emphasis added.) Therefore, as the court in C.M . observed when interpreting the similarly worded § 10-222l(a), a board of education that implements a safe school climate plan is immune from liability under § 10-222l(c) " as long as they are (1) reporting, investigating and responding to bullying, (2) in accordance with the provisions of the safe school climate plan, (3) in good faith, and (4) in the discharge of [their] duties . . ." C.M. v. Hamden, supra, 60 Conn.L.Rptr. 108. In order to establish the first two elements, the board must have made some affirmative effort to report, investigate, and respond to bullying in accordance with the provisions of the safe school climate plan. In other words, the immunity set forth in § 10-222l(c) does not apply to a board of education that takes no action to respond to reported acts of bullying. For example, the court in C.M . concluded that school officials were statutorily immune under § 10-222l where " [t]he gravamen of the complaint [was] that the [officials] were not doing enough to prevent further instances of bullying." (Emphasis added.) Id., 109. The court reasoned that the " allegedly inadequate responses to bullying may have constituted negligence, but they exemplify the type of negligence for which the immunity was created." Id.
The only other decision to address § 10-222l is Mazzo v. Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV-12-6031781-S (August 20, 2013, Sommer, J.) (56 Conn.L.Rptr. 721, ). In that case, the court concluded that § 10-222l does not imply a private cause of action for violations of § 10-222d, but made " no finding regarding the scope of the immunity provided by [§ 10-222l] . . ." (Emphasis added.) Id., 723. The court opined, however, that " [§ ]10-222l may provide a defense to [common-law negligence] claims if any of the defendants made a good faith effort to follow the statute's guidelines." Id.
In the present case, the gravamen of the plaintiff's revised complaint is not that the action taken by the defendants to prevent further instances of bullying was inadequate, but that the defendants failed to take any action at all. In each count, the plaintiff alleges that she and Sahrah reported multiple incidents of bullying to school officials, and that the school officials, instead of undertaking an investigation, ignored the reports and denied that bullying was taking place. Therefore, the plaintiff has alleged that the defendants did not make an affirmative attempt to report, investigate, and respond to bullying, thereby negating one of the prerequisites for immunity under § 10-222l(c). On this basis alone, the defendants are not entitled to statutory immunity under § 10-222l(c).
The plaintiff alleges in paragraph 12 that " [t]he [board] was aware of these bullying incidents and did nothing to prevent them. In particular, all attempts by the [plaintiff] to bring notice of the [acts of bullying] were ignored and the [board] denied that the bullying conduct occurred." It may reasonably be inferred from this allegation that the board did not investigate or take any other action in response to any of the reported acts of bullying. See Coe v. Board of Education, supra, 301 Conn. 116 (" in determining the sufficiency of a complaint . .., all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted" [internal quotation marks omitted]).
These allegations are set forth in count one of the revised complaint and incorporated by reference into each subsequent count.
Moreover, the plaintiff has pleaded that the defendants failed to act " in accordance with the provisions of the safe school climate plan . . ." C.M. v. Hamden, supra, 60 Conn.L.Rptr. 108. The defendants' inaction discussed in the preceding paragraph is squarely prohibited by § 5131.911, which imposes mandatory duties on school officials who receive reports of bullying. For example, § 5131.911(h) provides in relevant part that " [t]he [s]afe [s]chool [c]limate [s]pecialist shall be promptly notified of any formal or informal complaint of suspected bullying received by any school employee. The [specialist] shall investigate or supervise the investigation or reported acts of bullying in the school in accordance with the [d]istrict's [s]afe [s]chool [c]limate [p]lan. All such complaints shall be investigated promptly. The investigation must be completed promptly after the receipt by the [specialist] of any written report." In view of this language, while § 5131.911 does not prescribe the exact method by which suspected acts of bullying must be investigated, it nonetheless requires some investigation to take place. Thus, the plaintiff's claim that the defendants, without conducting even a cursory investigation, ignored all reports that Sahrah was being subjected to bullying establishes that the defendants failed to act in accordance with the safe school climate plan. Section 10-222l(c), therefore, does not bar any of the plaintiff's claims.
Regarding safe school climate specialists, § 5131.911(e) provides in relevant part that " each school [p]rincipal shall serve, or designate someone to serve, as the [s]afe [s]chool [c]limate [s]pecialist for the school." Section 5131.911(e) further provides that, among other things, " [t]he [s]pecialist in each school shall . . . [a]ct as the primary school official responsible for preventing, identifying and responding to bullying reports in the school."
The defendants also cannot establish statutory immunity under § 5131.911(t), which provides: " Members of the [b]oard of [e]ducation and school employees are protected by statute against damage claims in the implementation of a safe school climate plan and, in accordance with a school district safe school climate plan, report, investigate, or respond to bullying. PA 11-232 also extends this immunity to reports of bullying incidents by parents, students, and others to a school employee according to a safe school climate plan. To be immune, these parties must act in good faith and, in the case of a school employee or [b]oard of [e]ducation, within the scope of their duties. The immunity does not cover gross, wanton, reckless, or willful misconduct." The language of this section is identical in all material respects to the text of § 10-222l(c). In addition, the reference in § 5131.911(t) to " PA 11-232" is an allusion to § 10-222l, which was enacted through No. 11-232 of the 2011 Public Acts. Therefore, § 5131.911(t) was intended merely to reflect, not to expand upon, the statutory immunity set forth in § 10-222l(c). Accordingly, the defendants cannot avail themselves of statutory immunity under § 5131.911(t) for the same reasons they are not immune under § 10-222l.
IV
QUALIFIED IMMUNITY
The defendants next contend that they are entitled to governmental immunity pursuant to § 52-557n with respect to counts three through six of the revised complaint because those counts allege claims for intentional and reckless infliction of emotional distress. The defendants assert that § 52-557n only abrogates governmental immunity as to claims for negligence, and, therefore, that counts three through six, which are predicated on allegations of reckless and intentional conduct, are barred. The plaintiff does not address this argument in her memorandum of law.
Section 52-557n provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . Except as otherwise provided by law, apolitical subdivision of the state shall not be liable for damages to person or property caused by . . . [a]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . ." (Emphasis added.) " Under Connecticut law, the term 'wilfulness' is synonymous with 'intentional.'" (Internal quotation marks omitted.) Pane v. Danbury, 267 Conn. 669, 685, 841 A.2d 684 (2004), overruled on other grounds by Grady v. Somers, 294 Conn. 324, 984 A.2d 684 (2009). Accordingly, our Supreme Court has held that, on the basis of its governmental immunity under § 52-557n, a municipality " may not be liable . . . for [its employee's] alleged intentional infliction of emotional distress." (Internal quotation marks omitted.) Id.
The term " wilfulness, " moreover, also encompasses the concept of " recklessness." See Bhinder v. Sun Co., 246 Conn. 223, 242, 717 A.2d 202 (1998) (" [w]hile we 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]); Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998) (noting that, in context of common-law tort actions, concepts of wanton, reckless, wilful, intentional, and malicious conduct are indistinguishable); Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996) (" [a] wilful act is one done intentionally or with reckless disregard of the consequences of one's conduct"). Therefore, a claim for reckless infliction of emotional distress is also barred by governmental immunity.
In the present case, counts three and five of the revised complaint allege claims against the board for intentional and reckless infliction of emotional distress, respectively. Counts four and six allege claims against the town for intentional and reckless infliction of emotional distress, respectively. Because § 52-557n does not abrogate governmental immunity with respect to intentional and reckless conduct, counts three through six must be stricken.
Moreover, even if governmental immunity did not apply, the plaintiff's claims for reckless infliction of emotional distress must be stricken because Connecticut law does not recognize a cause of action for reckless infliction of emotional distress. As previously discussed, reckless infliction of emotional distress is a subset of intentional infliction of emotional distress, rather than a distinct tort. See, e.g., Kaya v. New London, Superior Court, judicial district of New London, Docket No. CV-05-4004203-S, (December 20, 2010, Cosgrove, J.) (" [t]he court concludes that reckless infliction of emotional distress is not recognized as a tort in the state of Connecticut"). Accordingly, counts five and six must be stricken on this additional ground.
V
LEGAL SUFFICIENCY
Finally, the defendants argue that all of the plaintiff's claims against the town should be stricken because, under General Statutes § 10-220, the duty to provide students with a safe school environment rests exclusively on local boards of education. Thus, the defendants contend that the town, a distinct municipal entity, is not liable for the injuries sustained by the plaintiff on school property. The plaintiff does not address this argument in her memorandum of law.
General Statutes § 10-220 provides in relevant part: " Each local or regional board of education . . . shall provide an appropriate learning environment for its students which includes . . . a safe school setting . . . shall have charge of the schools of its respective school district . . . shall have the care, maintenance and operation of buildings, lands, apparatus and other property used for school purposes . . . and shall perform all acts required of it by the town or necessary to carry into effect the powers and duties imposed by law."
The defendants also argue that (1) counts one and two of the revised complaint should be stricken because the plaintiff has failed to allege sufficient facts to state a claim for a violation of article eighth, § 1, of the Connecticut constitution, and (2) counts three and four should be stricken because the plaintiff has failed to allege sufficient facts to state a claim for intentional infliction of emotional distress. Because those counts have already been stricken for other reasons, the court does not need to address these arguments.
This court recently held, however, that on the basis of General Statutes § 10-240 and the principles of agency law recited by our Supreme Court in Cheshire v. McKenney, supra, 182 Conn. 253, § 10-220 does not operate to preclude claims against a municipality for injuries sustained on school property. See McCarroll v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV-14-6044518-S, (May 9, 2016, Fischer, J.) (" [T]he [b]oard [of education], in acting as an agent of the [town], is tasked with providing both property maintenance of [school] facilities and a safe school setting . . . As a result, the plaintiff properly commenced this action against the [town], and the [town], as the principal, did owe a duty of care to the plaintiffs for maintaining the [school] facilities. Therefore, the [town] can be subject to suit for negligence as a result of [its] agency relationship [with the board] . . ."). There is no reason for the court to revisit that ruling in the present case. Accordingly, for the reasons set forth in McCarroll, the defendants' argument that the town did not owe the plaintiff a duty to provide a safe school setting lacks merit.
General Statutes § 10-240 provides: " Each town shall through its board of education maintain the control of all the public schools within its limits and for this purpose shall be a school district and shall have all the powers and duties of school districts, except so far as such powers and duties are inconsistent with the provisions of this chapter."
In concluding that, notwithstanding § 10-220, a municipality may be held vicariously liable for injuries caused by the acts or omissions of its local boards of education, this court in McCarrol/ relied on Carlino v. Seymour, Superior Court, judicial district of Milford, Docket No. CV-92-0030838-S (June 19, 1998, Corradino, J.) (22 Conn.L.Rptr. 362, ), in which the court observed that " the language of § 10-220 did not intend to abrogate the law of agency. In other words, the fact that the statute imposes this duty of care and maintenance on the [b]oard [of education] does not mean that the [b]oard is not an agent of a principal that can be sued as a result of its agency relationship . . . Town boards of education, although they are agents of the state responsible for education in the towns, are also agents of the towns and subject to the laws governing municipalities." (Citations omitted; internal quotation marks omitted.) Id., 363,, *3; see also Fasano v. East Hartford, Superior Court, judicial district of Hartford, Docket No. CV-11-6017856-S, (June 5, 2014, Stengel, J.T.R.) (" [p]ursuant to . . . § 10-240 . . . local boards of education are agents of municipalities with respect to maintenance of school property"). This court reasoned in McCarroll that the decisions in Carlino and Fasano accorded with our Supreme Court's pronouncement in Cheshire that, on the basis of § 10-240, local boards of education, in addition to being agents of the state when upholding constitutional mandates, " are also agents of the municipality that they serve . . . [T]he state, in the exercise of its policy to maintain good public schools, has delegated important duties in that field to the towns . . . Local boards of education act on behalf of the municipality . . . in their function of maintaining control over the public schools within the municipality's limits." (Citations omitted; internal quotation marks omitted.) Cheshire v. McKenney, supra, 182 Conn. 258; see McCarroll v. East Haven, supra, Superior Court, Docket No. CV-14-6044518-S. Accordingly, this court in McCarroll necessarily declined to follow the line of decisions cited by the defendants in the present case, which generally hold that under § 10-220, municipalities are not liable for injuries occurring on school property. See Caron v. LaFlam, Superior Court, judicial district of New London, Docket No. CV-10-6003962-S, (November 20, 2012, Cosgrove, J.) (citing " Superior Court decisions [holding] that a town owes no duty to an individual injured on school property pursuant to § 10-220"). The court adheres to its decision in McCarroll and declines to follow those cases here. See part II of this memorandum.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike is granted as to counts one through six, and denied as to counts seven through ten.