Opinion
No. FST CV 03-0197020 S
March 13, 2007
Memorandum of Decision
This action involves injuries alleged suffered by the minor plaintiff on December 16, 2002 while she was a student at Schofieldtown Magnet Middle School in Stamford. The defendants are Matthew Delmore, a fellow student who allegedly caused injuries to the plaintiff in the hallway of the school by pushing her to the floor, the Stamford Board of Education, Howard Jennings, the principal of the school and Pia Manetta and Jennifer Ferris, two teachers at the school.
At issue are a motion to dismiss filed by the City of Stamford (the "City"), a motion to strike filed by the defendant Stamford Board of Education (the "Board"), and a motion for summary judgment filed by defendant Howard Jennings ("Jennings").
MOTION TO DISMISS
This action was commenced in late 2003. All defendants named in the summons and complaint have appeared. On August 18, 2006 the City, which was not named in the summons, appeared and filed a motion to dismiss the action against it. The fourth count of the plaintiffs' complaint purports to seek damages from the City under the authority of General Statutes § 7-465 which provides for indemnification by cities and town of damages awarded against municipal employees incurred in the course of their duties. The statute expressly includes teachers and others employed by boards of education as "employees."
The City's motion to dismiss claims that the City was not named in the summons as a party and that the City was not served with process. The City claims that the court accordingly lacks personal jurisdiction over the City. The court agrees. "[A] writ of summons is a statutory prerequisite to the commencement of an action . . . it is an essential element to the validity of the jurisdiction of the court." (Internal quotations omitted, citations omitted.) Hillman v. Greenwich, 217 Conn. 520, 526 (1991). The court grants the City's motion to dismiss.
MOTION TO STRIKE
The defendant Board has moved to strike the fifth count of the complaint. That count alleges that the plaintiff's action is brought as a direct action against the board under the authority of General Statutes § 52-557n(a)(1). In relevant part that statute provides: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . ."
In its motion to strike the Board claims that it is not a "political subdivision of the state" within meaning of the statute and further urges that even if the court finds otherwise, governmental immunity under General Statutes § 52-557n(b) would apply because the acts of the individual defendants were not ministerial in nature and the plaintiff does not fall within the imminent harm exception to governmental immunity.
In reviewing a motion to strike, the court "must read the allegations of the complaint generously to sustain its viability, if possible . . . [and] must, therefore . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 212, 746 A.2d 730 (2000).
"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, 815 A.2d 118 (2003) "For the purpose of ruling upon a motion to strike the facts alleged in a complaint though not the legal conclusions it may contain are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc. 264 Conn. 474, 476, 823 A.2d 1202 (2003).
The role of a trial count in ruling on a motion to strike is to test the legal sufficiency of a pleading. The court must "construe the facts alleged in the complaint in a light most favorable to the pleader." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). The court must examine the complaint to determine whether the plaintiff has stated a legally sufficient cause of action. Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
The trial court is limited to a consideration of the facts alleged in the complaint. A speaking motion to strike, that is one imparting facts outside of the complaint must be denied. Liliedahl Bros., Inc., v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). While consideration of a motion to strike requires that the court accept all well pleaded facts as admitted, the same is not so of legal conclusions and a motion to strike may be granted if a complaint alleges "mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992), Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982), Myra v. Aetna Life Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
POLITICAL SUBDIVISION OF THE STATE
The Board candidly admits that no reported cases have supported the claim that it, and similar boards of education, are political subdivisions of the state. The Board asserts that those cases which have applied General Statutes § 52-557n(a)(1) to boards of education have done so without analysis. As an example the Board cites Colon v. New Haven, 60 Conn.App. 178 (2000) in which the Appellate Court overruled the trial court's decision to grant summary judgment in a case involving a claim against a board of education for injuries sustained by a student due to the alleged negligence of a teacher in opening a door. The Appellate Court determined that the trial court properly determined that the opening of the door was a discretionary rather than a ministerial act. However, the Appellate Court disagreed with the trial court's determination that the imminent harm exception to governmental immunity did not apply. The defendant board in this case correctly points out that the Appellate Court did not directly hold that the Board of Education of the City of New Haven was a political subdivision of the state.
The defendant Board also argues that the "phrase political subdivision of the state" has not historically included boards of education. The board claims that in common usage the phrase would include cities, towns and boroughs (and in bygone days, counties), but not boards of education. In its brief the defendant Board does not provide a clear answer to the obvious question — "If Connecticut Boards of Education are not `political subdivisions of the state,' what are they?"
The defendant Board further argues that a careful reading of the usage of the phrase "political subdivision" as used in General Statutes § 7-381 suggests that "political subdivisions" include only those which have the power to levy taxes. The court finds the defendant Board's arguments to be unpersuasive.
Subsection (13) of General Statutes § 7-560 dealing with deficit financing defines "municipality" as "any town, city or borough, consolidated town and city, consolidated city and borough . . . and any other political subdivision of the state having the power to levy taxes and to issue bonds, notes or other obligations." This formulation suggests that the legislature contemplated the existence of political subdivisions of the state not possessing the taxing power.
The phrase "political subdivision of the state" is not defined in General Statutes § 52-557n. However, that phrase is used in numerous other provisions of the General Statutes. For example, General Statutes § 52-571b(f) — a statute prohibiting the burdening of exercise of religion states that "political subdivision of the state" "includes any agency, board, commission, department, officer or employee of the state or any political subdivision of the state."
General Statutes § 12-217ff(a) which establishes a tax credit for "donations of land for educational purposes" defines that term as "the value of any land or interest in land conveyed without financial consideration, or the value of any discount of the sale price in any sale of land or interest in land, to any municipality or political subdivision of the state for educational use, as defined in section 16-43b." It is hard to believe that the legislature would enact a statute embracing a public policy favoring gifts for land for educational purposes, while not including gifts to boards of education within its scope.
General Statutes § 16-43b provides in relevant part ". . .'educational use' means the use by any town, city or borough, whether consolidated or unconsolidated, and any school district or regional school district for the purposes of schools and related facilities." (Emphasis supplied.)
General Statutes § 7-479a which authorizes municipal risk management pools defines "Local public agency" as "any political subdivision of the state, including any city, town or borough or any district as defined in section 7-324 or any metropolitan district or any municipal district created under section 7-330, or other district, district department of health, school board, housing authority or other authority established by law." That definition evidences the legislature understanding that "political subdivisions of the state" include school boards. See also the similarly worded definition of "Municipal employer" in General Statutes § 7-467.
Finally, the court considers whether the interpretation of General Statutes § 52-557n urged by the defendant Board is consistent with the public policy evident in that statute. The obvious purpose of the statute was to provide relief to persons injured by the negligence of public employees who otherwise would go uncompensated. The defendant Board does not attempt to explain how leaving the victims of the negligence of school board employees without an effective remedy furthers that public policy or otherwise is consistent with any rational legislative goals.
Having considered the defendant Board's arguments the court concludes that the Appellate Court in Colon v. New Haven, supra, did not improperly assume the applicability of General Statutes § 52-557n to school board employees, but rather considered the application of the statute to be so obvious as to unworthy of comment.
GOVERNMENTAL IMMUNITY
In the second part of its motion to strike the defendant Board argues even if the court finds that General Statutes § 52-557n applies to school boards and their employees, the court should strike the fifth count of the complaint because that count is premised on conduct which is discretionary rather than ministerial and that the allegations of that count do not bring the plaintiff within the imminent harm exception for governmental immunity.
Generally, "governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n." Bonamico v. Middletown, 47 Conn.App. 758, 761 (1998). In relevant part General Statutes § 52-557n(a)(2)(B) provides that ". . . a political subdivision of the state shall not be liable for damages to persons or property caused by . . . negligent acts or omissions which require the exercise of judgment or discretion . . ." The defendant board argues that each of its employees identified in the fifth count were in the process of performing discretionary duties at the time.
The defendant board concedes that negligence in the performance of a discretionary duty is not immune "when circumstances make it apparent to the public officer that his or her failure to act would likely to subject an identifiable individual to imminent harm . . ." Evon v. Andrews, 211 Conn. 501, 505 (1989). However, the defendant Board claims that no such circumstances are alleged in the fifth count of the plaintiff's complaint, thus the plaintiff cannot claim to qualify as an identifiable victim of imminent harm.
In the brief submitted in opposition to the motion to strike the plaintiff claims that the fifth count alleges that the duties being performed by the defendant board's employees were ministerial in nature. The second and third count of the complaint contain factual allegations concerning the negligence of defendants, Manetta, Ferris and Jennings. These allegations are not incorporated into the fifth count.
The only allegations of negligence by the defendant board's employees set forth in the fifth count is the bare allegation of paragraph 9 that "The injuries and damages to the plaintiff Samantha Vogth-Erikson, were caused by the negligence of the defendant City of Stamford Board of Education, their agents or employees." Such an allegation does not allow the court to determine whether a discretionary or ministerial duty is at issue.
The lack of specificity in the allegations of negligence in the fifth count also prevents the court from determining whether the circumstances would render the plaintiff an identifiable victim of imminent harm and therefore within the exception to the rule of immunity for claims arising out of the performance of discretionary duties.
In ruling on a motion to strike the court is required to construe all allegations of the complaint in a manner most favorable to the plaintiff. Sherwood v. Danbury Hospital, supra. However, there is no rule of law that requires the court to supply missing factual allegations which are essential to the plaintiff's cause of action.
Under these circumstances the court finds that the fifth count, as plead, fails to state a cause of action. Accordingly, the defendant Board's motion to strike the fifth count of the complaint is granted.
MOTION FOR SUMMARY JUDGMENT
Defendant Jennings has moved for summary judgment in his favor with respect to the allegations of the third count of the complaint. In that count it is alleged that Jennings failed to properly supervise defendants Manetta and Ferris, he permitted those teachers to ignore their duty to the plaintiff to monitor the hallways of the school thereby creating a dangerous and unsafe condition, failed to replace missing hall monitors or to monitor the hallways himself, and failed to make inspections to ensure that teachers were doing their duties and monitoring hallways.
In his motion for summary judgment Jennings claims that there are no material issues of fact and that as a matter of law, he is entitled to governmental immunity because the alleged negligence clearly relates to discretionary duties and the plaintiff does not fall within the identifiable victim exception to that immunity.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book §[17-45] . . ." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005).
"In deciding a motion for summary judgment, the trial court must review the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . . The test is whether a party would be entitled to a directed verdict on the same facts . . ." Bartlett v. Heise, 84 Conn.App. 424, 428, 853 A.2d 612 (2004).
In opposition to Jennings' motion for summary judgment the plaintiff submitted a memorandum of law with the entire depositions of the plaintiff, the three individual defendants and a witness as well as an affidavit signed by the plaintiff. The plaintiff contends that these materials support her claim that the responsibilities of Jennings were ministerial in nature. At the very least, the plaintiff claims that a jury should be allowed to determine whether the alleged negligence of Jennings related to a ministerial or discretionary duty. The court disagrees.
The question of whether the duties of a public employee are discretionary or ministerial is a question of law. "[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court [unless] there are unresolved factual issues material to the applicability of the defense [where] resolution of those factual issues is properly left to the jury." Purzycki v. Fairfield, 244 Conn. 101, 107, 108, 708 A.2d 937 (1998). The court has reviewed the affidavits and transcripts which the plaintiff has filed in opposition to Jenning's motion for summary judgment. These materials do not raise a material issue of fact as to the discretionary nature of Jenning's duties.
In her opposition to the motion for summary judgment the plaintiff asserts that even if Jenning's duties were discretionary, there is an issue of fact as to whether the plaintiff falls within the imminent harm exception to the qualified immunity which would otherwise apply.
In the recent case of Doe v. Peterson, 279 Conn. 607 (2006) the Supreme Court summarized the Connecticut law regarding municipal sovereign immunity and, in particular, the exception to immunity for the performance of discretionary acts. The court stated:
Discretionary act immunity is abrogated 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 . . . The "apparentness" requirement is grounded in the policy goal underlying all discretionary act immunity, that is, `keeping public officials unafraid' to exercise judgment. G. Bermann, "Integrating Governmental and Officer Tort Liability," 77 Colum. L. Rev. 1175, 1180 (1977). It surely would ill serve this goal to expose a public official to liability for his or her failure to respond adequately to a harm that was not apparent to him or her." 279Conn. at 616-17.
The court went on to discuss the analysis required when the exception to immunity for discretionary acts is at issue:
CT Page 8147
First . . ., the core requirements for the "imminent harm" exception are analyzed conjunctively. To prevail the plaintiff must demonstrate that she was an identifiable person and was subject to imminent harm and that the public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to her. Demonstration of less than all of these criteria is insufficient . . .
Second, the criteria of "identifiable person" and "imminent harm" must be evaluated with reference to each offer. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person . . . For purposes of the `imminent harm' exception . . . It is impossible to be an identifiable person in the absence of any corresponding imminent harm. " id. at 620-21
Previously, in Purzycki v. Fairfield, supra, the Supreme Court considered the imminent harm exception as it related to the immunity claimed by a school principal for injuries suffered by a student after being tripped by a fellow student in an elementary school hallway during an unsupervised lunch recess. The Supreme Court held that the trial court had abused its discretion by setting aside a plaintiff's verdict on the basis that the evidence had not demonstrated that the plaintiff was a member of an identifiable class of persons that was subject to imminent harm from a foreseeably dangerous condition that was limited in duration and geographical scope. The court noted that in Burns v. Board of Education, supra, 228 Conn. 640, 649 (1994) it had held that school children who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims. The court found that from the evidence the jury could have reasonably concluded that the plaintiff was subjected to imminent harm during the half hour lunch period when the students were unsupervised in the school hallways.
The defendant claims that the holding of Purzycki, supra is inapplicable for a number of reasons. These include the fact that the school involved in the present case the school involved was a middle school, not an elementary school; and facts set forth in an affidavit signed by defendant Jennings. in that affidavit Jennings denies knowledge of any problem between the plaintiff and defendant Delmore and states that classes at the Schofield Magnet Middle School are of indeterminate length and not marked by the sounding of bells. From this the defendant reasons that the plaintiff could not meet the standards of the "imminent harm" exception.
The court does not agree. The question of whether middle school children require a greater or lessor degree of supervision in school hallways is a question of fact which cannot be determined on a motion for summary judgment. Moreover, the defendant overlooks the fact that the plaintiff's injuries were not sustained in the hallway between classes, but rather between advisory period (homeroom) at the beginning of the day. Whether the plaintiff was subjected to imminent harm because of the absence of supervision during the brief five-minute interval between the end of advisory period and the start of classes is a question of material fact which precludes the granting of summary judgment.
The court finds that defendant Jennings has not sustained his burden of demonstrating the absence of a material issue of fact. Accordingly, the motion for summary judgment is denied.