Opinion
No. CV-00-0443901 S
July 15, 2005
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The plaintiff has instituted suit on behalf of a minor child who was injured at his school.
In this case the defendants have filed a motion to strike the amended complaint dated October 11, 2002 for failing to state a cause of action upon which relief can be granted. Common law and statutory immunity are relied on pursuant to § 52-557n(a)(2)(B) of the general statutes. It is also argued that § 10-235 of the general statutes does not create a private cause of action.
The complaint is in five counts. The first count is against a teacher Suarez, the second count is against the principal of the school where the child was injured, Mr. Carabello, the third count lies against the Board of Education for failure to provide a safe environment under § 10-220 of the general statutes. The fourth count is entitled "Saez v. Board of Education, Indemnity." It claims that the defendant Board had a duty to indemnify the teacher and principal for their negligence resulting in the injuries to David Saez, pursuant to Connecticut General Statutes § 10-235.
The fifth count is entitled "Saez v. City of New Haven. Indemnity." It makes an indemnity claim against the city arguing the city is responsible for the negligence of the two individual plaintiffs and the resulting injuries to Saez pursuant to § 7-465 of the general statutes.
The factual allegations of negligence in the first and second counts are the same and they are set forth in the seventh paragraph of each count.
7. The injuries to David Saez were caused by the negligence of defendant Doris Suarez in one or more of the following ways:
a. in that she failed to supervise adequately students in the classroom;
b. in that she failed to train her staff to maintain discipline and order in the classroom;
c. in that she left the classroom unattended, and/or with inadequate personnel to monitor the students;
d. in that she failed to protect David Saez from being hurt by another student, Carlos Sanchez, when she knew or had reason to know that Carlos Sanchez had a history of harassing and picking on David Saez;
e. in that she allowed Carlos Sanchez to slam the classroom door on David Saez' hand;
f. in that although she knew or should have known that the door to the classroom had a defective closing mechanism, and posed a danger to children at the school she failed to have it removed or repaired;
g. in that she failed to inspect the door to the classroom, and/or to repair, replace or install a closing mechanism to prevent the classroom door from slamming shut;
h. in that she failed to maintain the classroom door in a safe condition.
The third, fourth, and fifth counts incorporate the same factual allegations.
The standards to be applied on a motion to strike are well known. In evaluating such a motion the court must give every reasonable and favorable inference to a complaint which is under attack. However, such a motion cannot be countered by conclusory allegations, factual allegations must be set forth.
A. (i)
The defendants' argument for dismissal of the first three counts is quite straightforward and the court will repeat it. Lombard v. Edward J. Peters, 252 Conn. 623, 628 (2000) is cited where the court says: "A public officer has a qualified immunity in the performance of a governmental duty, but (she) he may be liable if (she) he misperforms a ministerial act as opposed to a discretionary act. The hall mark of a discretionary act is that it requires the exercise of judgment." Marceau v. City of Norwich, 46 Conn.Sup. 197 (1999) ( 26 Conn. L. Rptr. 33) is also cited for the proposition that where the "exercise of discretion is involved, negligent failure to act will not subject the public official to liability." Section 52-557n(a)(2)(B) then is quoted from:
. . . [e]xcept as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property 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.
The defendants argue that clearly the alleged negligent acts sound in negligence — "they speak to the exercise and judgment of Suarez and Carabello's failure to act." "Discretionary duties" on the part of these two individuals are involved "and governmental immunity should apply."
The plaintiffs do not dispute this general statement of the law and recognize that "a municipal employee has a qualified immunity for discretionary acts." But they argue that there is an exception to this rule permitting an action in tort "where the circumstances make it apparent to the (municipal employee) that a failure to act would be likely to subject an identifiable person to imminent harm." This is one of the three exceptions to the general rule barring liability for discretionary acts. Shore v. Stonington, 187 Conn. 147, 153-55 (1982).
The question in this case then is whether the allegations of the complaint can be read to fit in to the above-referenced exception — are the alleged circumstances such that it would be apparent that a failure to act would subject an identifiable person to imminent harm. Evon v. Andrews, 211 Conn. 501, 507 (1989) discusses aspects of the exception in the two prior cases recognizing it. Shore v. Stonington, supra, and Sestito v. Groton, 178 Conn. 520, 528 (1979). Evon characterized Shore v. Stonington as holding that the exception did not apply there because "the plaintiff had failed to show that the plaintiff's decedent was an identifiable person subject to imminent harm," id. (emphasis by this court). Evon said that in Shore an officer observed evidence of intoxication in the driver of a car he had stopped for speeding. The "identifiable person" criteria was not met where as Evon observed " Later that evening, the driver struck a vehicle being driven by the plaintiff's decedent . . ." (Emphasis by this court). Primarily concerned with the imminence of harm requirement Evon went on to comment on Sestito. It said the trial court erred in directing a verdict for the defendant town based on governmental immunity. The Evon court said the trial court erred in Sestito because: "In resolving conflicting testimony on the issue of imminence of harm in favor of the plaintiff, we held that the case should then have been submitted to the jury." Evon at 211 Conn. 507. The Evon court failed to find the imminence of harm element in the case before it because the failure to inspect for fire code violations alleged in Evon, involved a danger that could materialize at any time in the future or not at all. Id., p. 508. That was not true in Sestito said the court where "a police officer stood by and watched a public brawl that resulted in a person being shot."
The cases of Burns v. Bd. Of Education, 228 Conn. 640 (1994) and Purzycki v. Fairfield, 244 Conn. 101 (1998) expand on the nature of this exception. Judge Gormley in Rodriguez et al v. City of Bridgeport, 33 Conn. L. Rptr. 167 (2002) gives an excellent analysis of the import of these two cases. He says:
In concluding that the facts in Purzycki were consistent with the facts in Burns v. Board of Education, supra, our Supreme Court stated: "In Burns, it was critical to our conclusion that governmental immunity was not a defense that `the danger was limited to the duration of the temporary . . . condition . . .' In Burns that temporary condition was a temporary icy condition on a main access way to the school campus and in Purzycki, supra, the temporary condition was the one-half hour interval when second grade students were dismissed from the lunch room to traverse an unsupervised hallway on their way to lunch. The court in Purzycki concluded: "Thus we follow Burns and, under the facts of the present case, conclude that there was sufficient evidence from which the jury reasonably could have found a foreseeable dangerous condition that was limited in duration and geographical scope."
Referring to the facts in the case before him Judge Gromley said: "Here the claims of negligence boil down to a lack of adequate security to prevent fights anywhere and at any time on the premises of Central High School, either inside or outside of buildings which protection would be accorded to all 2000 plus students of Central High at all times."
In Rodriguez Judge Gormley found that the defense of governmental immunity under the exception we have been discussing applied because he could not "conclude that the evidence supports the existence of a foreseeable dangerous condition that was limited in duration and geographical scope." Applying these principals the case now before the court is a difficult one. It may not be able to withstand a motion for summary judgment but since the court is obligated to give the wording of a complaint every favorable inference, it will not strike the first and second and third counts.
In paragraph 7(d) it alleges that the defendant teacher knew or had reason to know that the assailant Sanchez "had a history (of) harassing and picking on David Saez." Yet "she left the classroom unattended and/or with inadequate personnel to monitor the students" (7c). Subparagraph (e) alleges the teacher "allowed Carlos Sanchez to slam the classroom door on David Saez's hand."
Giving the complaint the most favorable inference "a limited time period and a limited geographic area" were involved — a particular classroom was left unattended which was not under the teacher's control for the time she was actually out of that classroom. It can be inferred that "the potential for harm . . . was significant and foreseeable" if in fact the teacher knew Sanchez had a history of harassing and picking on Saez. If it is established that the harassment was ongoing, of long duration, and the implication of physical violence especially is proven then there at least is a prima facie case that if these students were left together unattended for however short a time, in their classroom, there was a potential for harm being inflicted on the injured child. This will not be an easy burden to meet but the court does not believe it would be appropriate to grant the motion to strike despite the bare boned allegations of the complaint.
The question becomes how different is this case from Purzycki. Comparing that case to Judge Gormley's case the issue may turn on whether an unattended classroom setting, isolated from observation by other staff, presented more of a danger to this child than other areas of the school given the prior history of harassment by the attacker who was also in the classroom. Furthermore if the harassment was severe enough and known to the school authorities query whether the duration and limited geographical area requirements would be as important factors as they were in Purzycki — in that case there is no indication that the child who tripped the injured student had a history of harassment of the child who was hurt. The court cannot resolve these issues by means of a motion to strike.
(ii)
A further issue raised by the defendants must be discussed. Speaking of the imminent harm to an identifiable person exception Burns at 228 Conn. 640 said: "We have construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims;" Sestito at 178 Conn. 527-28 is cited. Burns used that holding to apply the exception to students required by statute to attend school referencing also obligations imposed on school officials to care for student's safety. Given the allegations here that a particular student was harassing this particular injured trial prior to the injury the Burns — Sesitito analysis may not be strictly on point. But insofar as this aspect of the Burns — Sesitito analysis also or really is talking about propriety of the imposition of a duty under negligence law the court cannot accept the defendants' position that a failure to explicitly allege that the incident causing harm here is not explicitly alleged to have occurred during school hours.
It can be inferred that Saez was in a public school during the time school was in session. The incident happened in May when the school year is still ongoing. Saez was a student at this school according to the complaint, the teacher is accused of leaving students unattended in the classroom. The court can infer that, pursuant to state statute, the students were in the classroom during school hours on school days. The duty of the Board of Education to provide a safe school setting and to maintain the school facility of the school where Saez was injured, which is alleged in the first and second count, only would arise in a situation where students would be attending regularly scheduled classes.
(iii)
One other matter must be discussed. The court should also note that it would appear that the allegations of negligence in subparagraphs 7f, g, and h, have nothing to do with an attack on Saez by Sanchez or issues raised by the alleged negligent supervision of the class and the resulting harm to Saez. They all appear to allege that the classroom door was defective. It slammed shut endangering students. The teacher knew or should have known of the dangerous condition. The motion to strike does not address the defective door mechanism allegation; on its own the court cannot raise the viability of these allegations, and a motion to strike a count cannot be granted if it does not address all the allegations of the count. Doyle v. AP Realty Corp., 36 Conn.Sup. 126 (1980).
B.
The fourth count like the third is directed against the Board of Education. The third count is based on § 10-220 of the general statutes. The fourth count makes a liability claim under § 10-235 which is an indemnity statute requiring the Board to indemnify the defendant principal and teacher for their negligence resulting in injury to the child Saez. There is a split of authority among the trial courts as to whether individual injured parties have a direct cause of action under § 10-235. The court agrees with the defendant Board that this statute gives no right to a direct action against the board, it is simply an indemnity statute and if the legislature wanted to provide for a direct action under its auspices it could have easily so indicated. The court is persuaded by the reasoning of Judge Blue in Logan v. City of New Haven, 38 Conn. L. Rptr. 700 (2005). He quotes from Judge King in Swainbank v. Coombs, 19 Conn.Sup. 391, 396 (1955) who says:
There is nothing in the statute which does, or purports to, impose on the board of education direct liability to this plaintiff, whether under the theory of respondeat superior, abolition of defense of governmental immunity, or otherwise. On the contrary, the statute provides, where applicable, that [the individual defendant] be protected and saved harmless from loss or expense consequent upon certain enumerated types of civil misconduct on his part. The plaintiff's rights of action are unaffected by the enactment of the statute. And unless, and until, [the individual defendant] has sustained a loss, [the individual defendant's] right of action under the statute against the board of education does not arise. The statute clearly provides for indemnification from loss, not indemnification from liability.
The fourth count is stricken.
C.
The motion to strike purports to be against the entire complaint. But the fifth count is against the city and is based on § 7-465 of the general statutes. That count and the applicability of the statute were not specifically discussed in the defendant's brief. In any event the court will only strike the fourth count.
Corradino, J.