Opinion
No. CV-05-5000225
October 29, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#115)
FACTS
The plaintiffs, Elisabeth Barnum, through her parents and next friends, Pamela Barnum and Robert Barnum, and her parents individually, filed a seven-count complaint on October 11, 2005, against the defendants, city of Milford (Milford); city of Milford board of education (board); Kenneth Walker, Elisabeth Barnum's gym teacher; Candace Antosz, a gym teacher; and Michael Cummings, the principal of Foran High School. This action arises out of injuries and losses allegedly sustained as a result of Elisabeth Barnum's fall on October 2, 2003, during her gym class while playing a game of speedball.
All five defendants are represented by the same counsel and filed all pleadings jointly. Therefore, where appropriate, they will collectively be referred to as defendants.
In count one, the plaintiffs allege that Milford and the board were careless and negligent when they: created the gym or allowed it to remain defective, dangerous or unsafe, failed to barricade the dangerous condition, failed to make proper or reasonable inspections, failed to give any warning to the plaintiff of the dangerous or defective condition, improperly designed the gymnasium, failed to maintain the gym, failed to remedy the dangerous and defective condition, failed to take any affirmative action to correct the defective condition and failed to adequately supervise the area. In counts two and three, the plaintiffs claim that Walker, Antosz and Cummings were negligent and careless due to their failure to: erect a barricade, make proper or reasonable inspections, give any warning to the plaintiff of dangerous or defective conditions, remedy the dangerous and defective condition, take any affirmative action to correct the defective condition, supervise the area so as to ensure the safety of the plaintiff, adequately supervise athletic activity in which the plaintiff participated and failed to instruct the plaintiff in the event in which the plaintiff was participating. The plaintiffs further allege, in counts six and seven, that Milford's inaction to pad the wall, or to remove bleachers from a particular area of the gym, constitutes a nuisance. In count four the plaintiffs claim indemnity, pursuant to § 7-465, from Milford for the carelessness and negligence of the defendant employees. Count five is also a claim for indemnity pursuant to 10-235, from the board for the carelessness and negligence of the defendant employees. Lastly, Robert and Pamela Barnum seek to recover reimbursement for medical expenditures pursuant to General Statutes § 52-204 in counts one, two, three, six and seven.
General Statutes § 7-465 provides in relevant part that "[a]ny town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property . . . if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment . . ."
General Statutes § 10-235(a) provides in relevant part "[e]ach board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff, and the State Board of Education, the Board of Governors of Higher Education, the board of trustees of each state institution and each state agency which employs any teacher . . . shall protect and save harmless any member of such boards, or any teacher or other employee thereof or any member of its supervisory or administrative staff employed by it, from financial loss and expense . . . arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death . . ."
General Statutes § 52-204 provides in relevant part "[i]n any civil action arising out of personal injury or property damage, as a result of which personal injury or property damage the husband or parent of the plaintiff has made or will be compelled to make expenditures or has contracted indebtedness, the amount of such expenditures or indebtedness may be recovered by the plaintiff . . ."
The defendants filed an answer and special defenses on November 16, 2005.
The defendants claim governmental immunity pursuant to common law and General Statutes § 52-557n for counts one through five. They also claim that Elisabeth Barnum was negligent and careless as to counts one, two and three. The special defenses for counts six and seven are failure to state a claim upon which relief can be granted, assumption of risk and contributory negligence.
The plaintiffs filed a reply to the special defenses on November 22, 2005.
The plaintiffs' reply is a blanket denial of all of the defendants' special defenses.
On April 18, 2007, the defendants filed a motion for summary judgment as to all counts. The defendants argue that counts one through three are precluded by governmental immunity, count four is derivative in nature and fails because counts two and three are barred by governmental immunity, the plaintiffs improperly rely on General Statutes § 10-235 in count five, and, as to counts six and seven, the plaintiffs failed to state a claim upon which relief can be granted. The defendants submitted a memorandum of law in support of the motion. In support of their motion, the defendants have submitted the following evidence: (1) a copy of a certified deposition transcript of Elisabeth Barnum; (2) an affidavit of Bruce Kolwicz, the director of public works for the city of Milford; (3) an affidavit of Michael Cummings, the principal of Foran High School; (4) an affidavit of Candace Antosz, a physical education teacher; and (5) an affidavit of Kenneth Walker, a physical education teacher.
On June 25, 2007, the plaintiffs filed a memorandum in opposition. In support of their memorandum, the plaintiffs have submitted the following evidence: (1) an uncertified copy of interrogatories; (2) an uncertified copy of Elisabeth Barnum's deposition; and (3) an affidavit of Elisabeth Barnum.
On June 28, 2007, the defendants filed a reply to the plaintiffs' objection. In support, the defendants submit a certified copy of Elisabeth Barnum's deposition testimony.
The parties argued the matter at short calendar on July 2, 2007.
DISCUSSION
"[T]he standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith 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." (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).
"Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). "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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "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." (Internal quotation marks omitted.) Id., 318-19.
The defendants move for summary judgment as to all counts on the grounds that: (1) the common-law claim of negligence against Milford and the board in count one is barred by governmental immunity; (2) Principal Cummings, Walker and Antosz are entitled to governmental immunity; (3) the claims involving indemnification fail, as they are derivative in nature; (4) the nuisance claims against the city and board fail to state a claim upon which relief can be granted; and (5) the claims are barred pursuant to Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997).
The defendants' first argument is that the plaintiffs cannot prevail in a direct action against a municipality unless the plaintiffs cite to a statute, specifically § 52-557n, in their complaint. "While the [defendants are] correct in pointing out that the plaintiffs did not cite § 52-557n in their complaint . . . the plaintiffs' failure to do so does not necessarily preclude recovery. Although Practice Book § 10-3(a) provides that when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number, this rule has been construed as directory rather than mandatory . . . As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book 10-3(a) will not bar recovery . . . [A]lthough a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings." (Internal quotation marks omitted; emphasis in original.) Spears v. Garcia, 66 Conn.App. 669, 675-76, 785 A.2d 1181 (2001), aff'd on other grounds, 263 Conn. 22, 818 A.2d 37 (2003).
General Statutes § 52-557n(a)(1) provides in relevant part "[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) [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 . . ."
In this case, although the plaintiffs failed to plead § 52-557n in count one of their complaint, it is apparent that the defendants were aware of the plaintiffs' reliance on the statute. Specifically, the defendants cite to § 52-557n in their memorandum of law, and as in Spears v. Garcia, supra, 66 Conn.App. 676, the plaintiffs rely on that statute in their memorandum of law in opposition to the motion for summary judgment. Therefore, this motion is denied on this ground. Consequently, this court must next determine whether the defense of governmental immunity is applicable to this case.
"The issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law." (Internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 613. "[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." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107-08, 708 A.2d 937 (1998).
"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.'" (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 320, 907 A.2d 1188 (2006). "[T]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents." (Internal quotation marks omitted.) Vejseli v. Pasha, 282 Conn. 561, 572, 923 A.2d 688 (2007).
"The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Although historically [a] municipality itself was generally immune from liability for its tortious acts at common law . . . [municipal] employees faced the same personal tort liability as private individuals . . . Over the years, however, [t]he doctrine of [qualified] immunity has provided some exceptions to the general rule of tort liability for municipal employees. 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." (Citations omitted; internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 35-36, 818 A.2d 37 (2003). "Municipal officials are immune 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." (Internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 614. "[L]ocal boards of education act on behalf of the municipality they serve . . . and . . . their professional and nonprofessional employees are employees of the municipality . . ." Cheshire v. McKenney, 182 Conn. 253, 260, 438 A.2d 88 (1980).
In this matter, the plaintiffs concede that the allegations of negligence against Walker, Antosz and Cummings involve discretionary acts and omissions, not ministerial acts. "Therefore, in order to prevail, the plaintiffs' claim must fall within one of the recognized exceptions to qualified immunity for discretionary acts. Our cases recognize three such exceptions: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted.) Purzycki v. Fairfield, supra, 244 Conn. 108.
"The only exception to the qualified immunity of a municipal employee for discretionary acts that is relevant to the present case is the exception permitting a tort action in circumstances of likely imminent harm to an identifiable person. [The Supreme Court has] construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." Burns v. Board of Education, 228 Conn. 640, 645-46, 638 A.2d 1 (1994). "By its own terms, [the imminent harm] 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." Doe v. Petersen, supra, 279 Conn. 616. The Supreme Court has stated 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." (Citation omitted; internal quotations omitted.) Violano v. Fernandez, supra, 280 Conn. 329.
"[T]he criteria of `identifiable person' and `imminent harm' must be evaluated with reference to each other. 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." Doe v. Petersen, supra, 279 Conn. 620-21. "For the purposes of the `imminent harm' exception, however, it is impossible to be an identifiable person in the absence of any corresponding imminent harm." Id., 621.
The concept of identifiable victim is explained in Burns v. Board of Education, supra, 228 Conn. 640. In that case, the court held that "statutory and constitutional mandates demonstrate that school children attending public schools during school hours are intended to be the beneficiaries of certain duties of care . . . The presence of the plaintiff child on the school premises where he was injured was not voluntary. As a fourteen year old at the time of the accident, he was statutorily compelled to attend school and to obey school rules and discipline formulated and enforced pursuant to statute." Id., 648-49. "As a matter of policy . . . case law . . . has traditionally recognized that children require special consideration when dangerous conditions are involved." Id., 650. The plaintiff child was held to be an identifiable victim because he was a student, he was compelled to be at school, and he slipped on a main access way to the school due to icy conditions that could have been prevented. The court reached a similar decision in Purzycki v. Fairfield, supra, 244 Conn. 101.
The plaintiffs allege in the complaint that Elisabeth Barnum was at school, lawfully attending classes at the time she hit her head on the unpadded wall. Further, in her deposition testimony, Elisabeth Barnum states that she was in gym class, playing speedball when she was injured. (Defendants' brief, Exhibit A.) The defendants have not presented evidence to contradict these assertions. Elisabeth Barnum is therefore an identifiable victim because "schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims." Purzycki v. Fairfield, supra, 244 Conn. 109.
It is next necessary to determine whether Elisabeth Barnum meets the imminent harm prong of the imminent harm/identifiable person exception. The Supreme Court has developed a limited time period, geographical scope test for determining whether harm is "imminent." In Purzycki v. Fairfield, supra, 244 Conn. 101, the court stated that "the danger [to the plaintiff] was limited to the duration of the temporary . . . condition . . . [and that] the potential for harm . . . was significant and foreseeable." (Citation omitted; internal quotation marks omitted.) Id., 110. The court held that the plaintiff was at risk of imminent harm because "the imminent harm was limited to a one-half hour period each day when the second grade students were dismissed to traverse an unsupervised hallway, when school administrators were aware that unsupervised children are more likely to run and engage in horseplay leading to injuries." Id., 111. Further, it was a temporary condition because "the principal testified that every other aspect of the lunch period involved supervision. Finally, the risk of harm was significant and foreseeable, as shown by the principal's testimony `that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries.'" Id., 110.
Similarly, the court in Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000), held that the plaintiff schoolchild was a foreseeable victim subject to imminent harm when, while walking in a hallway, he was struck by a door swung open by a teacher. "[The plaintiff] was a student required by statute to be in school. It is alleged that [the teacher] opened a door in a negligent manner causing [the plaintiff], a student, to be injured. The danger presented was limited in duration, as it could happen only when students are in the hallway in a dangerous spot. The potential for injury from being hit by an opening door is significant. Accordingly . . . governmental immunity does not apply to the present case because the identifiable person-imminent harm exception is applicable." CT Page 18200 Id., 187-88.
Although the defendants rely on Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), to support their argument that Elisabeth Barnum was not subject to imminent harm, that reliance is misplaced because Evon is distinguishable from the present matter. In Evon, the plaintiffs sought damages for the wrongful deaths of their decedents who had allegedly died in a house fire. The plaintiffs alleged that the city and its officers were negligent in failing to enforce certain statutes, codes and regulations regarding the maintenance of rental dwellings, which the plaintiffs claim resulted in the death of their family members. Id., 502. "The gravamen of the plaintiff's allegations is that the defendants had not done enough to prevent the occurrence of a fire. The risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. The class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of `identifiable persons' . . . Furthermore, the plaintiffs' decedents were not subject to `imminent harm.'" Id., 507-08. "[T]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." (Internal quotation marks omitted.) Id., 508.
The defendants have not met their burden of demonstrating the absence of a genuine issue as to whether Elisabeth Barnum was subject to imminent harm. The plaintiffs allege that Elisabeth Barnum was in gym class, in the school gym, where certain walls are unpadded, when the injury occurred. Elisabeth Barnum testified in her deposition that there is padding on the walls behind the basketball hoops, but that there is no padding anywhere else in the gym. (Defendants' brief, Exhibit A.) She further testified that she was playing group sports, specifically speedball, as a part of her gym class at the time of her injuries. (Defendants' brief, Exhibit A.) Accordingly, the defendants have failed to meet their burden with regard to the "imminent harm" aspect of this exception to governmental immunity.
Having met the first two prongs of the imminent harm/identifiable person exception, it is now necessary to determine whether the "apparentness" prong is satisfied. "The `apparentness' requirement is grounded in the policy goal underlying all discretionary act immunity, that is, `keeping public officials unafraid' to exercise judgment . . . It surely would ill serve this goal to respond adequately to a harm that was not apparent to him or her." (Citation omitted.) Doe v. Petersen, supra, 279 Conn. 616-17.
The defendants have not met their burden of showing the absence of a genuine issue of material fact with regard to whether it was apparent to the individual defendants that students such as Elisabeth Barnum could be hurt while playing speedball. The affidavits submitted by defendants Cummings and Antosz indicate that neither person was present during the time of Elisabeth Barnum's accident. Cummings avers in his affidavit that "I leave the supervision of students to the discretion of the teachers in the classroom . . . On October 2, 2003, I was not present in Mr. Walker's classroom." (Defendants' brief, exhibit C.) Antosz states that "I could not determine nor was it apparent to me that Ms. Barnum was at imminent risk of harm on October 2, 2003." (Defendants' brief, exhibit H.) Antosz also states that "I was not present at the time of Ms. Barnum's accident and was teaching a class in another location in the building." Id. During Elisabeth Barnum's deposition, she testified that her gym class was playing speedball against Antosz' class, which suggests that Antosz was present. (Defendants' brief, exhibit A.) This evidence was submitted by the defendants, and conflicts with Antosz' affidavit, which was also submitted by the defendants. The defendants have not met their burden of demonstrating the absence of a genuine issue of material fact regarding whether or not the potential for injury was apparent to Antosz, as it is not clear whether Antosz was present or not in the gymnasium on the day of the alleged accident.
The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
Walker, Elisabeth Barnum's gym teacher, stated in his affidavit that "[a]t the time of the incident it was not apparent to me that Ms. Barnum was subject to imminent harm as she always participated in the physical education class without incident and displayed no outward apprehensive behavior toward playing the game of speedball." (Defendants' brief, exhibit I.) The issue, however, is not whether Elisabeth Barnum was aware of the risk of being injured, but rather whether Walker, Antosz and Cummings were aware that playing speedball in an unpadded facility would subject students like the Elisabeth Barnum to imminent harm. Moreover, averments contained in an affidavit that are merely denials of the allegations in a complaint "are an insufficient basis for the rendition of summary judgment." Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995). In addition, conclusory statements are not sufficient to establish the existence of disputed material facts; Gutpa v. New Britain General Hospital, 239 Conn. 574, 687 A.2d 1111 (1996); or the lack thereof. Further, Elisabeth Barnum's deposition testimony states that "[t]here was only like five feet of the touchdown zone between the concrete wall and the line where you could get a touchdown." (Defendants' reply brief, Exhibit A). Therefore, the defendants have failed to show that there are no genuine issues of material fact as to whether it was apparent to the individual defendants that injury was imminent.
In addition, the evidence is contradictory as to what exactly caused Elisabeth Barnum's alleged injury. The defendants argue in their brief, and submit evidence to show, that the injury was caused by Elisabeth Barnum's collision with another player. (Defendants' brief, Exhibit A.) In contrast, Elisabeth Barnum testified at her deposition testimony that the back of her head hit a concrete wall. (Plaintiffs' brief, Exhibit B.) She further stated that she was "pretty sure" her rear end hit the ground and then her head hit the wall. (Defendants brief, Exhibit A.) She also stated that she "fell, hit my butt and then my head hit the wall." (Plaintiffs' brief, Exhibit B.) Viewing the evidence in the light most favorable to the nonmoving party, therefore, the defendants have failed to show that there are no issues of material fact remaining with regard to counts one through three, and accordingly the motion is denied as to those counts. The motion is denied as to count four because it is a claim for indemnification pursuant to General Statutes § 7-465, which is still viable, because count two and three survive summary judgment. Therefore, the motion for summary judgment is not granted as to these counts.
The plaintiffs submitted as evidence a properly certified affidavit and uncertified copies of a deposition and interrogatory. "[T]he Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment pursuant to Practice Book § 384 . . . [W]e have not determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment." Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n. 1, 692 A.2d 1238, cert. denied, 241 Conn. 915, 696 A.2d 3402 (1997). Therefore, where the parties, as is here, have not disputed the legitimacy of the evidence submitted, it is at the discretion of the trial court whether or not to review the uncertified documents.
Next, the defendants argue that the plaintiffs' claim for indemnification against the board fails because § 10-235 is an indemnification statute and does not permit a direct action against a board of education. The plaintiffs argue that they seek indemnification from the board for the carelessness and negligence of its employees, not direct liability. "There is a split of authority in the Superior Court over the question whether individual injured parties have a direct cause of action under § 10-235 against a board of education, and neither the Appellate Court nor the Supreme Court has addressed the issue directly . . . However, the majority of Superior Court decisions have held that § 10-235 is solely an indemnification statute and does not permit a direct cause of action against a board of education." (Citation omitted; internal quotation marks omitted.) D'Alessio v. Ansonia, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 00 0070881 (October 11, 2000, Nadeau, J.) [28 Conn. L. Rptr. 361].
"Section 10-235 is not intended to benefit prospective plaintiffs; it is a statutorily created right of indemnification for the benefit of teachers and other board employees . . . Its purpose is to make indemnification available to a board of education employee for losses sustained from claims or suits . . . resulting from any act of the employee performed in the discharge of his or her duties . . . The statute, by its terms, provides for indemnification of employees of the board or its members but does not give plaintiffs a direct cause of action." (Citations omitted; internal quotation marks omitted.) CT Page 18203 Walsh v. Board of Education, Superior Court, judicial district of Waterbury, Docket No. CV 98 0149790 (November 6, 2000, Wiese, J.). "Moreover, the statute provides for indemnification from loss, not from liability . . . The right to indemnification is contingent on a judgment's being obtained against a board member, teacher, employee or any member of the board's staff." (Citation omitted; internal quotation marks omitted.) Id. "The text of the statute itself, with its `protect and save harmless language,' supports the conclusion that the legislature intended to provide only actual indemnification of a liable employee, rather than a direct cause of action by a third party." Brown v. Acorn Acres, Superior Court, judicial district of New London at Norwich, Docket No. CV 0117980 (August 23, 2000, Martin, J.) (28 Conn. L. Rptr. 24).
In Brown v. Acorn Acres, supra, the plaintiff sought indemnification from the defendant, the board of education, for the alleged carelessness of its employees pursuant to § 10-235. The plaintiff in that case had alleged facts similar to those of the plaintiffs in the present matter, specifically that the defendant employees negligently supervised the students, failed to take steps to minimize any risks or warn the students of danger. Despite the allegations alleged by the plaintiff in Brown v. Acorn Acres, the court determined that § 10-235 did not apply, granting the defendants' motion to strike. Specifically, the court stated that " Burns [v. Board of Education, supra, 30 Conn.App. 594] establishes nothing more than the principal that a board of education is not liable under § 10-235 unless an individual employee is first found liable." Id. Similarly, the court in Devonish v. Bloomfield, Superior Court, judicial district of Hartford, Docket No. CV 03 0825932 (May 9, 2007, Rittenband, J.T.R.), granted the defendants' motion for summary judgment as to the plaintiff's count for indemnification based upon § 10-235 because the statute "does not provide for a direct cause of action by a plaintiff against a school [b]oard."
Therefore, "in this case, any claim for indemnification would be premature because no board employee has suffered a loss." Walsh v. Watertown Board of Education, supra. Further, § 10-235 is not intended to provide a direct cause of action for the plaintiff, but is intended to provide indemnification for defendant employees only after they become liable. Accordingly, the motion is granted as to count five.
The defendants next argue that counts six and seven, both against Milford, should fail because the plaintiffs' nuisance allegations fail to state a claim upon which relief can be granted. The Supreme Court has stated that "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
"[A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). General Statutes § 52-557n(a)(1) provides in relevant part 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: . . . (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149."
The plaintiffs do not specify in their complaint whether they are bringing an action for public or private nuisance, however, an action for private nuisance is not available. Elisabeth Barnum's alleged "injury was not related to a right which [she] enjoys by reason of [her] ownership of an interest in land . . . and, therefore, cannot be sustained as a private nuisance, the plaintiff[s] ha[ve] the additional burden associated with establishing a public nuisance, namely, proving that the nuisance interferes with a right common to the general public." (Citations omitted; internal quotation marks omitted; emphasis added.) Elliot v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998).
The plaintiffs do not plead that the condition complained of had a natural tendency to create danger and inflict injury, that the use of the gym was unreasonable or that the danger was a continuing one that interferes with a right common to the general public. The plaintiffs merely allege that Elisabeth Barnum was injured by a nuisance created by Milford, specifically the unpadded surface in the gym and benches. They also allege that the unprotected wall was located on property owned and operated by Milford. Accordingly, these counts are legally insufficient. Nevertheless, the motion for summary judgment as to counts six and seven is not granted. Although those counts are legally insufficient, as the plaintiffs do not specifically plead all of the facts necessary to support claims for public nuisance, the defects could be cured by repleading. See Larobina v. McDonald, supra, 274 Conn. 401-02.
The defendants' last argument in support of their motion is that all of the plaintiffs' claims are barred by Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997). In Jaworski, the court held that "as a matter of policy, it is appropriate to adopt a standard of care imposing on the defendant, a participant in a team contact sport, a legal duty to refrain from reckless or intentional conduct. Proof of mere negligence is insufficient to create liability." Id., 412. The defendants argue that "the question presented in the instant case is whether this court finds the distinguishing facts of this case sufficient to depart from the ruling in Jaworski v. Kiernan, supra, 241 Conn. 399. Other than the fact that participation in this sporting event was not totally voluntary since it took place during school hours and as part of a physical education class, this case is in all other respects factually similar." (Defendants' brief.)
Jaworski v. Kiernan, supra, 241 Conn. 399, does not bar recovery for the plaintiffs on any count, as that case is distinguishable from this matter. The defendant in Jaworski v. Kiernan, supra, 241 Conn. 399, was a fellow competitor, whereas in this matter, none of the defendants are fellow competitors. Further, Elisabeth Barnum's participation in the game of speedball was not voluntary, as she has alleged and testified that she played in the game as part of her gym class curriculum. (Defendants' brief, Exhibit A; Elisabeth Barnum's affidavit.) Most importantly, however, the plaintiffs allege in their complaint that she was injured when she fell and hit her head on the unpadded wall. This is starkly contrasted to the evidence submitted by the defendants, which indicates that jumping and crashing into a fellow player caused her accident, not the unpadded wall. (Defendants' brief, Exhibit A.) At a minimum, there is a genuine issue of a material fact, and therefore, the motion for summary judgment is not granted on this ground.
CONCLUSION
For the foregoing reasons, the motion for summary judgment is denied as to counts one through four and six and seven because (1) there are genuine issues of material fact as to whether or not the defense of governmental immunity applies, (2) the legal insufficiency of the plaintiffs' nuisance claims could be corrected by repleading counts six and seven, and (3) Jaworski v. Kiernan, supra, 241 Conn. 399, does not bar recovery. Summary judgment is granted as to count five, as § 10-235 does not provide a direct cause of action against the board.