Opinion
No. NNI-CV-00-0272084-S
November 8, 2007
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS (#154) AND RELATED CLAIMS
This memorandum of decision addresses the parties' complex pretrial contest over subject matter jurisdiction and the effect, if any, of governmental and/or qualified municipal immunity upon the pending complaint. These very issues have been the focus of a series of relevant opinions recently published by our Supreme and Appellate courts. Through their skilled and attentive counsel, the parties have responded to each of these opinions, raising applicable nuances in appellate law for this court's consideration through well-reasoned and comprehensive briefs and oral argument.
This court has accordingly considered and responded to the multiple issues presented through the Defendants' Motion to Dismiss (#154), Memorandum of Law in Support of Motion to Dismiss (#155), Supplemental Brief in Support of Motion to Dismiss (#159), and Second Supplemental Brief in Support of Motion to Dismiss (#166.5). The court has further considered and addressed the issues presented through the Plaintiff's Objection to Defendant's Motion for Summary Judgment (#152), Memorandum of Law in Support of Her Objection to Defendants' Motion for Summary Judgment (#153), Brief (#158), Reply to Defendants' Second Supplemental Brief Re Motion to Dismiss (#168), and Supplemental Reply to Defendant's Motion to Dismiss (#169).
The alleged immunity issues emanate from a personal injury action brought on behalf of Candice Dellavalle, a minor child (the child), against defendants who were identified on the Summons-Civil form for the original complaint as follows: D.C. Moore School, East Haven Board of Education; Barbara Stern, Principal, D.C. Moore School; and the Town of East Haven. The operative complaint generally alleges that as the result of the defendants' negligence, the child suffered personal injuries in an incident that occurred on February 16, 2000; that the incident took place on school grounds, during school hours, in a school building, and in a school classroom; and that the incident occurred while the child was enrolled as an elementary student at that school. (#132.) The defendants' motion to dismiss asserts that the court lacks subject matter jurisdiction over the presented claims in their entirety because the action is barred by governmental and/or qualified immunity. The plaintiff counters that the issue of governmental immunity has been improperly raised through the motion to dismiss and, alternatively, contends that the court maintains subject matter jurisdiction.
Upon deliberation, the court finds all functional issues in favor of the plaintiff. Accordingly, the defendants' motion to dismiss (#154) is herein DENIED. Insofar as the defendants have also moved for summary judgment, as presented through their memorandum of law (#155), that motion is also DENIED, while the plaintiff's objection to summary judgment (#152) is herein SUSTAINED.
I. PROCEDURAL HISTORY AND THE OPERATIVE COMPLAINT
The plaintiff's complaint was dated April 4, 2000 and was filed with the clerk of the court on April 17, 2000 (2000 complaint). As noted, the Summons-Civil form for the 2000 complaint identified three defendants: D.C. Moore School, East Haven Board of Education; Barbara Stern, Principal, D.C. Moore School; and the Town of East Haven. The Officer's Return submitted by Deputy Sheriff Mark J. White indicates that on April 8, 2000: he served, in hand, "the within named defendant, D.C. Moore School, East Haven Board of Education, accepted by Elizabeth Leary, Town Clerk, 250 Main Street, East Haven, CT;" he served "the within named defendant, Barbara Stern, Principal, D.C. Moore School" in hand; and he served "the within named defendant, Town of East Haven, accepted by Elizabeth Leary, Town Clerk, 250 Main Street, East Haven, CT." On May 19, 2000, counsel filed an appearance on behalf of "All Defendants."
Although clearly addressing injuries allegedly sustained by the child, the 2000 complaint had been captioned as having been brought by "Tina Dellavalle, ppa Candice Dellavalle."
The 2000 complaint sounded in three counts, alleging, in part, that on February 16, 2000, the child was a student at the D.C. Moore School, a public school in East Haven, Connecticut; that the cafeteria within the school also served as a gymnasium for the students; that the lunch tables folded into the walls of the cafeteria; that on the day in question, the child was in gym class ostensibly in the cafeteria and had her back to a lunch table which "came crashing out of the wall, striking [her] in the face" and causing her physical and emotional injuries. Without identifying any specific or individual tortfeasor, the First Count of the 2000 complaint alleges that the occurrence "was due to the negligence and carelessness of the defendant, D.C. Moore School, its agents, servants and/or employees, including custodians and maintenance workers." (Emphasis added.) Paragraph 6 of the First Count enumerates the negligent and careless acts and/or omissions by those unspecified agents, servants and/or employees that allegedly led to the child's injuries. The Second Count of the 2000 complaint alleges that the occurrence "was due to the negligence and carelessness of the defendant, Barbara Stern," who had been identified as the school's principal on the Summons-Civil form; this count enumerates the acts and/or omissions by Stern that allegedly led to the child's injuries. The Third Count of the 2000 complaint alleges that the D.C. Moore School and Barbara Stern "were agents of the Town of East Haven and were acting in the performance of their duties and within the scope of their employment, and that said occurrence alleged in the First or Second Counts was not the result of any willful or wanton act of said defendants." The 2000 complaint also asserts a claim of indemnity from the Town of East Haven "for the carelessness and negligence of the defendant employees" pursuant to General Statutes § 7-465. The 2000 complaint did not expressly claim that special damages were suffered by any person other than the child as the result of the occurrence at issue. On June 19, 2000, the defendants answered the complaint, and submitted special defenses, first raising the subject of governmental and/or qualified immunity (#102). On June 29, 2000, the plaintiff denied the special defenses (#103), thus closing the pleadings.
As the defendants have raised the fundamental question of subject matter jurisdiction, the court has considered and construed the facts alleged in the complaint, and inferences reasonably drawn therefrom, in a manner most favorable to the plaintiff. Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
In reaching its determination in this matter, the court acknowledges that the plaintiff's pleadings have never identified any "custodians" or "maintenance workers" by name. Nonetheless, she has not sued the town alone, and has effectively brought suit in the first count against a "municipal employee or agent" so as to implicate the indemnification provisions of § 7-465 in the event of a verdict in her favor. See Gaudino v. East Hartford, 85 Conn.App. 353, 359, 865 A.2d 470 (2005). See also footnote 4, referencing the text of § 7-465.
General Statutes § 7-465(a) provides, in pertinent part: "Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, 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 physical damages to person or property, except as set forth in this section, 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, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty."
On June 1, 2004, an amended complaint was filed (#132) (hereinafter 2004 complaint) without modifying the defendants as identified in the 2000 complaint, the Summons-Civil or in the sheriff's return of service. The 2004 complaint reiterated the allegations of the 2000 complaint, but expressly stated that the child "brings this action by her parent, guardian, and next friend, Tina Dellavalle." The captions for each of the three counts the complaint were amended to reflect the mother's participation in the action as the child's representative for purposes of the pending litigation. (#132.)
In October 2004, the court (Frazzini, J.) denied the motion to dismiss (#130) that the defendants had brought because the pleadings had failed to correctly name Tina Dellavalle as the actual plaintiff upon the 2004 complaint; at that time, Tina Dellavalle stood as the next friend of her biological daughter Candice, on whose behalf the complaint had been brought. Dellavalle v. D.C. Moore School, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00-0272084S (Frazzini, J., October 29, 2004) (Memorandum of Decision on Defendant's Motion to Dismiss #129, Plaintiff's Motion to Substitute Plaintiff as Party #130 and to Amend Complaint #132).
On November 3, 2006, while the motion to dismiss (#154) was pending, the plaintiff submitted her Request to Amend Complaint (#160). On February 21, 2007, the court received the plaintiff's Notice of Filing of Amended Complaint, accompanied by an amended complaint (#164.) On that date, the court also received the Motion to Substitute Plaintiff by utilizing the minor child's legal guardian as her next friend, in lieu of the child's biological mother. (#163.) On February 23, 2007, the court received the defendants' Objection to Plaintiff's Notice of Filing Amended Complaint, asserting that for purposes of resolving the pending motion to dismiss and related claims, the 2004 complaint was operative. (#165.) On March 13, 2007, the court denied the Request to Amend Complaint (#160), without prejudice to the plaintiff. See Dellavalle v. D.C. Moore School, Superior Court, judicial district of New Haven at Meriden, Docket No. NNI-CV00-00272084-S (March 13, 2007, Rubinow, J.) (#166) [43 Conn. L. Rptr. 27] (Memorandum of Decision re Plaintiff's Request to Amend Complaint #160). On March 5, 2007, the court (Holzberg, J.) ordered Phyllis Siclari, the child's legal guardian, to be substituted as her next friend in lieu of Tina Dellavalle, without affecting the substantive allegations of the 2004 complaint. (#163.)
That substitution was not reflected on the complaint that accompanied the Notice of Filing of Amended Complaint (#164).
II. PENDING ISSUES
The court has been called upon to address numerous and diverse arguments presented by the parties in connection with the prosecution and defense of the 2004 complaint. The written submissions include the following:
On October 13, 2006, in response to the plaintiff's amended complaint dated May 28, 2004, the defendants filed their Amended Answer and Special Defenses (#150). The special defenses included an assertion that the minor plaintiff's injuries "were due in whole or in part to her own negligence," and a separate assertion that "[t]he defendants are entitled to governmental and/or qualified immunity on the plaintiff's claims." (#150.) In response, on October 17, 2007, the plaintiff denied the special defense sounding in comparative negligence and submitted that the special defense sounding in governmental and/or qualified municipal immunity presented "a matter of law to be decided by the court at the appropriate time." (#151.)
On October 18, 2006, the court received the Defendants' Motion to Dismiss (motion to dismiss) which alleged that the court "lacks subject matter jurisdiction" over the plaintiff's claims. (#154). This motion specifically requested dismissal of "the Plaintiff's Amended Complaint dated May 28, 2004 in its entirety on the grounds that the plaintiff's negligence claims are barred by the doctrine of governmental immunity" and that, therefore, the plaintiff was not eligible for indemnification from the town for the alleged negligent acts of its agents. (#154.) The motion to dismiss was accompanied by Defendants' Memorandum of Law in Support of Motion to Dismiss. (#155.)
Also on October 18, 2006, the court received the Plaintiff's Objection to Defendant's Motion for Summary Judgment (plaintiff's objection), asserting that "[t]he defendants' government immunity is abrogated by C.G.S. § 52-557n." (#152.) In addition, the Plaintiff's Objection asserted that "if this Court should find that the defendant's (sic) negligent acts and omissions were discretionary thereby entitling defendant's (sic) to a qualified immunity, the plaintiff falls within an exception to their qualified immunity in that she is an identifiable person in danger of imminent harm." (#152.) The plaintiff's objection was accompanied by Plaintiff's Memorandum of Law in Support of Her Objection to Defendants' Motion for Summary Judgment. (#153.)
Among other things, § 52-557n(a)(1) establishes that "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. . ." (Emphasis added.) Section § 52-557n(a)(2) provides, however, that (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . (B) 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. (Emphasis added.) The 2004 complaint does not reference § 52-557n. See also #153.
On November 3, 2006, the court received the Plaintiff's Brief asserting, among other things, that "[t]his Court has subject matter jurisdiction over the question of the defendant's claimed governmental immunity, and a motion to dismiss is therefore an inappropriate vehicle for the defendant (sic) to test the legal sufficiency of the plaintiff's Complaint." (#158.) In addition, the Plaintiff's Brief contended that "[a]ny failure of the plaintiff to cite `Board of Education' in the plaintiff's Complaint is a circumstantial defect under Connecticut General statutes Section 52-123 and does not deprive the Court of jurisdiction." (#158.)
General Statutes § 52-123 provides that: "No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court."
Also on November 3, 2006, the court received the Defendants' Supplemental Brief in Support of Motion to Dismiss. (#159.) Through this brief, the defendants argued that, among other things, "a motion to dismiss should be the proper vehicle to raise the issue of governmental immunity." (#159.) The defendants also noted that while the summons "identified the first named defendant as `D.C. Moore School, East Haven Board of Education. . .'" the caption of the originally served complaint "identified D.C. Moore School as a named defendant, but did not identify the East Haven Board of Education . . . as such," and that the complaint therefore "fails to make any allegation against the Board itself." (#159.) Accordingly, the defendants submitted that the court cannot have jurisdiction over the subject matter of the plaintiff's "claims against D.C. Moore School because the school is not a legal entity with a capacity to sue and be sued." (#159.) The defendants argue that as "there is no statutory provision establishing schools as separate legal entities . . . schools, as opposed to boards of education and the municipality itself, cannot be sued." (#159.) Finally, the defendants' Supplemental Brief submitted that the motion to dismiss must be granted in view of the Supreme Court's opinion in Violano v. Fernandez, 280 Conn. 310, 907 A.2d 1188 (2006). The defendants construed the facts of Violano v. Fernandez to be sufficiently akin to the pending complaint, arguing that both matters involve discretionary acts by a municipality, and claiming that "the plaintiff here cannot establish the imminence prong of the identifiable person imminent harm exception" to the principle of governmental and/or qualified municipal immunity. (#159.) As such, the defendants argue, "the plaintiff cannot establish this exception to governmental immunity and [the] claims against the defendants should be dismissed." (#159.)
The defendants further submitted that "Should this Court find that a motion to dismiss is an improper vehicle to raise governmental immunity, the defendants respectfully request this Court to treat its motion to dismiss as a motion for summary judgment." (#159.)
The parties have participated in numerous hearings concerning multiple aspects of the pleadings including the motion to dismiss (#154). On March 6, 2007, the Appellate Court published its opinion in Mazurek v. Town of East Haven, 99 Conn.App. 795, 916 A.2d 90 (2007). On March 29, 2007, the court received the Defendants' Second Supplemental Brief in Support of Motion to Dismiss, asserting that Mazurek v. Town of East Haven "supports the defendants' position [as] [t]herein, the Court held that governmental immunity `implicates subject matter jurisdiction.' Id. at 797." (#166.50.) On April 16, 2007, the court received the Plaintiff's Reply to Defendant's Second Supplemental Brief Re: Motion to Dismiss. (#168.) Therein, the plaintiff argues that the defendants' reliance on Mazurek v. Town of East Haven is ill-founded and based solely upon inapplicable dicta. (#168.) The plaintiff's brief (#168) did not directly address the defendants' earlier request that the court alternatively consider their original motion to dismiss as a motion for summary judgment (#159) as the method for testing the effect upon the pending complaint of the special defense sounding in governmental and/or qualified immunity. However, the plaintiff did therein urge the court to recognize that Mazurek v. Town of East Haven approved the use of the doctrine of governmental immunity to shield the municipal defendant from liability only after consideration of a motion for summary judgment, not after hearing a motion to dismiss. (#168.)
On May 29, 2007, the Supreme Court published its opinion in Vejseli v. Pasha, 282 Conn. 561, 923 A.2d 688 (2007). On July 13, 2007, the court received the Plaintiff's Supplemental Reply to the Defendant's Motion to Dismiss arguing that "[t]he Vejseli Court ruled that governmental immunity does not implicate subject matter jurisdiction, and therefore, a motion to dismiss is the improper vehicle to attack the plaintiff's complaint." (#169.) The defendants declined the opportunity to respond to this most recent challenge to their motion to dismiss.
On October 2, 2007, the Supreme Court published its opinion in Durrant v. Board of Education of the City of Hartford, 284 Conn. 91, 931 A.2d 859 (2007). Durrant disapproved the claim brought by a parent who was injured upon the public school grounds she had visited in order to pick up her child who had completed an extracurricular activity. In explicating the basis for its holding, the Supreme Court reviewed the general legal precepts related to governmental and/or qualified immunity and reiterated the circumstances under which that immunity may be shown to preclude recovery for persons other than students who are injured upon school property. Both counsel declined the opportunity to respond to the implications of Durrant v. Board of Education.
III. MOTION TO DISMISS
The defendants have brought their motion to dismiss (#154) "to assert lack of jurisdiction over the subject matter. . ." Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). For the following reasons, the court finds this issue in favor of the plaintiff.
"[O]nce the question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); see also Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted; external citation omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
In seeking to dismiss the action on the ground that the plaintiff's claims are barred by governmental and/or qualified immunity, the defendants claim that the use of the table at school, in the context of the plaintiff's allegations, constitutes a discretionary governmental function. The defendants additionally contend that the plaintiff has failed to properly bring suit against the board of education who employs any of the individuals who may have caused her injuries; because, they argue, the complaint was brought against D.C. Moore School, which is not a legal entity capable of being sued, this defect mandates dismissal of the complaint. The defendants further argue that none of the exceptions to governmental immunity apply to the plaintiff's case, and that because the claim against Stern is barred, the town cannot be liable for indemnification under § 7-465.
The plaintiff counters that a motion to dismiss is not the proper vehicle to assert governmental immunity. She further argues that her claims against should not be dismissed because any failure to reference her cause of action against the board of education, in the text of the complaint, constitutes a circumstantial defect which can be corrected.
As the plaintiff has aptly argued, the issues raised by the defendants' motion to dismiss are governed by the explicit protocol for such matters as confirmed by our Supreme Court in Vejseli v. Pasha, supra, 282 Conn. 561. This opinion reminds us that Connecticut's courts "expressly have recognized that, `[u]nlike the state, municipalities have no sovereign immunity from suit . . . Rather, municipal governments have a limited immunity from liability.' (Citation omitted; internal quotation marks omitted.) Westport Taxi Service v. Westport Transit District, 235 Conn. 1, 26, 664 A.2d 719 (1995); see also Cone v. Waterford, 158 Conn. 276, 278, 259 A.2d 615 (1969) . . . "[W]hereas `[t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss;' (internal quotation marks omitted) Cox v. Aiken, [ supra, 278 Conn. 211]; the doctrine of governmental immunity implicates no such interest." Vejseli v. Pasha, supra, 282 Conn. 572. Accordingly, applying the rule of Vejseli v. Pasha to the present case, the municipal defendants' motion to dismiss (#154) must fail.
Vejseli v. Pasha involved a complaint brought by purchasers of a newly constructed home for by the town of Watertown's building inspectors had issued a certificate of occupancy notwithstanding the structure's numerous code violations. Vejseli v. Pasha, supra, 282 Conn. 563. In addition to allegations against the builders, the complaint alleged negligence on the part of the municipal building inspectors in their individual and official capacities, and reckless and wanton disregard on the part of the town with regard to hiring, training and supervising these employees. Id. "In their answer, the [municipal] defendants posed numerous special defenses, including that the plaintiffs' claims were barred by the doctrine of governmental immunity under both the common law and General Statutes § 52-557n. . ." Id., 564. The defendants moved to dismiss the claims against the town and the inspectors in their official capacities claiming, among other things, that the town was shielded by municipal immunity. Id., 566. "The trial court denied the defendants' motion to dismiss, concluding that the `town has used the wrong vehicle to attack [these] counts of the complaint . . . [because] [g]overnmental immunity does not implicate subject matter jurisdiction.'" (Footnote omitted.) Id., 561. Vejseli v. Pasha affirmed the trial court's ruling that while subject matter jurisdiction may be attacked when a plaintiff has brought suit against the state, the issue is not properly raised by a motion to dismiss where the plaintiff has brought a complaint against a municipality. Id., 568.
In Vejseli v. Pasha, the Supreme Court reaffirmed that a motion to dismiss claiming lack of subject matter jurisdiction is appropriate when an action is brought against the sovereign because the "state would lose the benefit of its immunity from suit if it were forced to defend against an action without the availability of immediate review of an interlocutory order denying its motion to dismiss. . ." Id. The opinion reiterates, however, that this concern does not apply "in the context of municipalities' governmental immunity." Id. The effect of municipal immunity upon the cause of action is not properly tested through a motion to dismiss asserting lack of subject matter jurisdiction, but through a special defense, as had been acknowledged by the trial court that denied the town's motion to dismiss for lack of subject matter jurisdiction. Id., 566 n. 6. Vejseli v. Pasha further approves the trial court's accurate observation that "` . . . 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.' (Citations omitted; internal quotation marks omitted.) See also, e.g., Violano v. Fernandez, [ supra, 280 Conn. 321-22]; Westport Taxi Service v. Westport Transit District, [ supra, 235 Conn. 24]." Vejseli v. Pasha, supra, 282 Conn. 566 n. 6.
The defendants argue that the plaintiff would have this court read the lessons of Vejseli v. Pasha in too narrow a fashion. They apparently prefer to emphasize only the aspects of Vejseli that address concerns over whether or not a trial court's denial of a municipality's motion to dismiss, grounded upon claimed lack of subject matter jurisdiction, is an interlocutory ruling or whether it presents an opportunity for appeal. Vejseli v. Pasha, supra, 282 Conn. 562. Vejseli v. Pasha explains that a "trial court's denial of the [municipal] defendants' motion to dismiss based on governmental immunity is not an appealable final judgment. . ." Id., 562-63. However, that determination in Vejseli v. Pasha is grounded on the fundamental premise that such ruling is not an appealable final judgment "because a municipality's governmental immunity shields it from liability only and not from suit." (Emphasis added.) Id., 563. Given this foundation, the court is constrained to adopt the plaintiff's proposed construction of the rule enunciated by Vejseli v. Pasha, to wit, that an issue of governmental and/or qualified municipal immunity does not implicate the court's subject matter jurisdiction in the circumstances of this case, such that the motion to dismiss may not properly be granted, but must be denied.
In a further effort to promote the court's consideration of their motion to dismiss (#154), the defendants promoted the principles established by the Appellate Court in Mazurek v. East Haven, 99 Conn.App. 795, 916 A.2d 90, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). Perhaps the defendants' arguments concerning Mazurek may seem, at first glance, to be compelling. Even so, as the plaintiff has aptly noted, the Supreme Court disposed of those arguments through Vejseli v. Pasha, which opinion was published following the submission of the defendants' brief #166.5. As Vejseli rejected the very contention upon which this argument in support of the defendants' motion to dismiss was based, Mazurek cannot effectively provide them with lawful relief.
Mazurek v. East Haven involved a suit brought against the defendant town by a plaintiff who had attended a birthday party on premises of a volunteer firehouse owned by the town. The plaintiff alleged to have fallen upon steps while leaving that building, thereby sustaining personal injuries. Mazurek v. East Haven, supra, 99 Conn.App. 796-97. Prior to trial, "the court denied the town's motion for summary judgment in which the town argued that it was shielded from any potential liability by the doctrine of governmental immunity." Id., 797. Upon appellate review, the Mazurek court affirmed the trial court's determination that theories of governmental immunity offered no protection because, under the circumstances of that case, the activity in which the town had engaged, allowing the private use of the premises, "constitute[d] a proprietary and not a governmental function." Id., 799-800. Accordingly, Mazurek "conclude[d] that the defendant was not shielded by the doctrine of governmental immunity. . ." in that case. Id., 800.
The defendants sincerely proposed that this court rely upon Mazurek insofar as that case may be read to tacitly condone the use governmental and/or qualified immunity principles to protect a municipal defendant that has engaged in non-proprietary activities. Id., 800. This argument is inapposite to the motion to dismiss (#154), however, because as previously discussed our law clearly states that even while municipalities may be immune from liability in certain circumstances, they are not immune from suit. Vejseli v. Pasha, supra, 282 Conn. 573, 574. As the Vejseli court noted, the Appellate Court's result in Mazurek v. East Haven was due to its mistaken reliance upon Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). Vejseli v. Pasha, supra, 282 Conn. 573-74 n. 11. Mazurek had used Baker v. Ives to conclude that the "doctrine of governmental immunity . . . implicates subject matter jurisdiction and therefore must be determined in favor of the plaintiff before any of the issues in the appeal can be addressed." (Internal quotation marks omitted.) Id. The Vejseli court commented that "[a]lthough this language undoubtedly appears helpful to the defendants' case, it also is the product of the Appellate Court's misreading of Baker v. Ives, supra, at 298 . . . which was a case involving the state highway defect statute, General Statutes § 13a-144, and not governmental immunity as it pertains to municipalities." Id. Thus, the principles of Mazurek are inapposite to the plaintiff's pending claims, and provide no grounds for dismissing her cause of action. Accordingly, the court declines to adopt this aspect of the defendants' support for their pending motion #154.
However, as discussed in Vejseli v. Pasha, the defendants' lack of access to dismissal on grounds of subject matter jurisdiction does not eliminate their opportunity for pretrial consideration of the effect of governmental and/or qualified municipal immunity upon the plaintiff's claims. For instance, having presented the issue of municipal immunity in their first set of special defenses (#102), the defendants could have tested the effect of this legal concept upon the plaintiff's complaint by pursuing a motion to strike. Violano v. Fernandez, supra, 280 Conn. 321-22; Westport Taxi Service v. Westport Transit District, supra, 235 Conn. 24; see also Bailey v. Town of West Hartford, 100 Conn.App. 805, 809, 921 A.2d 611 Conn.App. (2007); Egri v. Foisie, 83 Conn.App. 243, 247, 250, 848 A.2d 1266 (2004) (motion to strike, not motion to dismiss raising issues of subject matter jurisdiction, is proper mechanism for testing the impact of sovereign immunity upon complaint alleging statutory vehicular negligence by state employee). In addition, a motion for summary judgment may, under the proper circumstances, be used to test the legal sufficiency of a complaint such as that pending before the court. See, e.g., Durrant v. Board of Education, supra, 284 Conn. 96-97; LaRobina v. McDonald, 274 Conn. 394, 398-99, 876 A.2d 522 (2005); Spears v. Garcia, 263 Conn. 22, 25-26, 818 A.2d 37 (2003); Gaudino v. East Hartford, 87 Conn.App. 353, 357, 865 A.2d 470 (2005) ("Although we do not condone the use of a motion for summary judgment as a response to a defective pleading when a motion to strike would suffice, we can find no statute, rule or case that prohibits the use of a motion for summary judgment in this context").
"The distinction between the motion to dismiss and the motion to strike is not merely semantic. If a motion to dismiss is granted, the case is terminated, save for an appeal from that ruling . . . The granting of a motion to strike, however, ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings. See Practice Book § 10-44. That critical distinction implicates a fundamental policy consideration in this state. Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure . . . For that reason, `[a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal.' Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991)." (Internal citations omitted.) Egri v. Foisie, 83 Conn.App. 243, 247, 848 A.2d 1266 (2004).
In view of the holding in Vejseli v. Pasha, the court cannot adopt the defendants' contention that a motion to dismiss asserting lack of subject matter is an appropriate mechanism for testing the effect of governmental and/or qualified municipal immunity upon the complaint. For the reasons stated above, given other available avenues for procedural relief and given the fact that the parties have herein submitted their arguments and exhibits for the court's consideration in the context of a motion for summary judgment, the defendants' motion to dismiss must be denied. (#152, #153, #155.)
IV. MUNICIPAL IMMUNITY
Even if the court has erred, and even if the issue of subject matter jurisdiction was properly brought before the court through a motion to dismiss, the court finds the issues of governmental and/or qualified immunity (henceforth, municipal immunity) in favor of the plaintiff. Under the circumstances of this case, in which a school child seeks to recover damages for injuries she sustained while on school grounds, engaged in a scheduled school-sponsored activity, the immunity protections do not apply whether the activity in which the governmental entity is engaged are ministerial or discretionary in nature. See Durrant v. Board of Education of the City of Hartford, supra, 284 Conn. 101.
"Although municipalities are generally immune . . . municipal employees historically were personally liable for their own tortious conduct . . . The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." (Citations omitted; internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998). "It is axiomatic that ministerial acts [are those that] are performed in a prescribed manner without the exercise of judgment" and, therefore, are immune from liability. (Internal quotations marks omitted.) Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989), citing Gauvin v. New Haven, 180, 184, 445 A.2d 1 (1982).
"Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint." (Citation omitted.) Colon v. Board of Education, 60 Conn.App. 178, 181, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). "The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Violano v. Fernandez, supra, 280 Conn. 318. As an overall matter of public policy, "municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no . . . interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." Id., 319. Thus far, our case law has stopped of establishing that a plaintiff is obligated to allege that a particular rule or policy existed, or that a defendant's conduct breached a published or otherwise definitively "prescribed manner" of behavior, in order to evade the municipal immunity defense. See, e.g., Violano v. Fernandez, supra, 280 Conn. 323-24. The appellate courts have, however, consistently emphasized that issues related to decisions to adopt or employ one method or another of inspecting or servicing property does not constitute a ministerial act, but involves judgment, and is therefore inherently discretionary in nature. Id., 324; see also Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989).
In the present case, the amended complaint contains no allegations that at the time the child was injured there were any written or oral policies or directives in place regarding the use, maintenance, inspection and/or care of the cafeteria tables, or for supervising those activities.
Accordingly, the complaint does not allege any failure to comply with a designated method of inspecting, maintaining, repairing or utilizing the table in question or custodians or maintenance workers charged with those tasks. Overall, the 2004 complaint presents no allegations that, fairly read, implicate any school agent's obligation to perform a ministerial task in a certain manner, which manner was not the subject of compliance on the date the plaintiff was injured. Instead, the negligence-based allegations of the complaint each assert that a school agent failed to exercise due caution and judgment insofar as the table was concerned, alleging that the defendants caused, allowed or permitted the table at issue to be and remain in an unsafe condition "in that it did not properly latch into the wall;" that they failed to supervise the custodians in the school and require them to keep the lunch table safe; that they failed to remedy or repair these conditions when "reasonably necessary;" that they failed to warn the plaintiff; that they "failed to properly inspect said table to determine that no defects existed that could injure the plaintiff. . ." that they failed to properly maintain the table when they knew "or in the exercise of reasonable care" should have known of its dangerous and defective condition; and that they permitted the table to become and remain in its defective condition "so as to constitute a menace, danger and unreasonable risk of harm to the plaintiff or other persons entering the school." (#132.) "Determinations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment and are, therefore, discretionary in nature." (Emphasis added.) Segreto v. Bristol, 71 Conn.App. 844, 857, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). Accordingly, given the complaint at issue, the court is constrained to conclude that each of the plaintiff's allegations concerning the negligent conduct of the governmental agents or employees implicates the failure to perform a discretionary act with regard to the table that is said to have caused the plaintiff's injuries.
The fact that the plaintiff has only thus far alleged discretionary municipal conduct does not, in and of itself, render the 2004 complaint insufficient, nor does it warrant dismissal of her cause of action. In Violano v. Fernandez, supra, the Supreme Court reiterated the three sets of circumstances under which governmental immunity will not protect a municipality from liability even though its agent or employee's conduct is discretionary: "First, . . . when the alleged conduct involves malice, wantonness or intent to injure . . . Second, . . . when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, . . . 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. . ." (Quotation marks omitted; external citation omitted.) Violano v. Fernandez, supra, 280 Conn. 319-20. If the motion to dismiss is properly before the court, as the alleged conduct concerning the cafeteria table at issue is necessarily categorized as discretionary government act, the issue then becomes whether one of the exceptions to governmental immunity applies so as to permit the plaintiff to proceed with her complaint.
The court also observes that a pertinent provision of the legislation codifying a municipality's tort liability, General Statutes § Section 52-557n(a)(1)(A), "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 . . . [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. . .' 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.'" Violano v. Fernandez, 280 Conn. 310, 320, 907 A.2d 1188 (2006).
Here, the plaintiff must prevail. The child, a student assigned to be upon school premises at the time of the incident in question, falls squarely within the "identifiable person subject to imminent harm" exception to the extension of governmental and/or qualified immunity to the municipal defendants. Violano v. Fernandez, supra, 280 Conn. 319-20. For purposes of the identifiable person imminent harm exception, schoolchildren, as a class, are considered identifiable. Durrant v. Board of Education, supra, 284 Conn. 96-97, 101; Purzycki v. Fairfield, supra, 244 Conn. 109; Burns v. Board of Education, 228 Conn. 640, 648-59, 638 A.2d 1 (1994); see also Prescott v. Meriden, 273 Conn. 759, 764, 873 A.2d 175 (2005) (reasoning that schoolchildren are an identifiable class of victims because they are statutorily compelled to attend school, several statutes outline the care and duties owed to children while attending school, and children "traditionally require special consideration in the face of dangerous conditions").
Moreover, our Supreme Court most recently attended to questions of municipal immunity as they affect individuals injured on school grounds through its opinion in Durrant v. Board of Education of the City of Hartford, supra, 284 Conn. 91. Durrant involved a negligence action against municipal defendants, brought by the parent of a child whose six-year-old son was voluntarily attending an aftercare and homework study group at the public school where he was enrolled as a matter of law. "The plaintiff claimed that the defendants' failure to remove a puddle of water on an outside staircase of a public school attended by her child was an act that had subjected her, as an identifiable member of a foreseeable class of persons, to imminent harm, thereby abrogating the defendants' claim of governmental immunity" as presented through their motion for summary judgment. Id., 93. The Supreme Court held that the plaintiff mother was on school grounds in a capacity other than as a mandated student, she was not a member of an identifiable class of foreseeable victims, for purposes the imminent harm exception to governmental immunity for discretionary acts. Accordingly, summary judgment was properly entered in favor of the municipal defendants against whom the mother had properly brought suit, but who were shielded from liability on those grounds. Id., 108.
In Durrant, it was uncontroverted that the plaintiff-mother was not enrolled as a student, but that she was on school grounds to retrieve her son from an after-school program in which he was voluntarily enrolled. Moreover, as the plaintiff-mother "concede[d] that the defendants' conduct was discretionary, . . . she can prevail only if she falls within one of the delineated exceptions to governmental immunity." Durrant v. Board of Education of the City of Hartford, supra, 284 Conn. 100.
The circumstances Durrant differ markedly from those of the present case, where the cause of action is brought on behalf of a minor child who was an enrolled student at the school where the alleged injuries occurred; the defendants do not contest the inference that the minor plaintiff in the pending action was obligated to be in attendance at school, or that she was directed to the particular multi-purpose room where the incident that caused her harm was said to have taken place. While addressing and denying a claim brought by a non-student, the Durrant court specifically addressed the issue of the governmental duty to an enrolled student, upon school grounds and at the location where she is directed by school personnel to be in attendance, firmly adhering to the principles that the defense of governmental immunity cannot apply to such a student, even if the agency charged with the duty is engaged in discretionary acts when the child sustains harm. Durrant v. Board of Education, supra, 284 Conn. 101.
The Durrant court commenced its analysis of this long-standing rule with a discussion of Burns v. Board of Education, supra, 228 Conn. 640. "The plaintiff in Burns was a schoolchild who was required by statute to attend the school where he sustained an injury during school hours on an icy courtyard. Burns v. Board of Education, supra, 228 Conn. at 650, 638 A.2d 1. [This court] decided that the child was one of a class of foreseeable victims to whom the defendant superintendent owed a duty of protection. Id. The defense of governmental immunity did not apply under the circumstances in which parents are statutorily compelled to relinquish protective custody of their children to a school board and its employees. Id., at 649-51, 638 A.2d 1." (Emphasis added.) Durrant v. Board of Education, supra, 284 Conn. 101.
The Durrant court then proceeded to assess the degree of duty owed by a public school to an enrolled student as described in Purzycki v. Fairfield, supra, 244 Conn. 101. "In Purzycki v. Fairfield, supra, . . . the minor plaintiff suffered injuries when he was tripped by another student in an unmonitored school hallway. In discussing the applicable exception to governmental immunity, [the court] reiterated that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims . . . Id., at 109, 708 A.2d 937. The court concluded that the limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess constituted sufficient evidence for a jury to find imminent harm." (Quotation marks omitted; emphasis in the original.) Durrant v. Board of Education, supra, 284 Conn. 102.
Durrant v. Board of Education acknowledged the codification of circumstances under which a municipality is responsibility for its agents' negligent acts as is set forth in General Statutes § 52-557n, et seq. legislation which predated the publication of the opinion in Burns v. Board of Education, supra.
Durrant last explored the premises for the exception to governmental immunity for school students described in Prescott v. Meriden, supra, 273 Conn. 759. Unlike the successful student-plaintiffs in Purzycki and Burns, the "unsuccessful plaintiff in Prescott . . . was the parent of a high school student-athlete. Id., at 761, 873 A.2d 175. The plaintiff attending his son's football game as a spectator, was on school grounds after school hours . . . [The court], in applying the Burns doctrine, . . . concluded that the plaintiff, as the parent of a student, was not entitled to any special consideration in the face of dangerous conditions [and] that parents are not the intended beneficiaries of any particular duty of care imposed by statute, nor are they legally required to attend school." (Internal citations omitted.) Durrant v. Board of Education, supra, 284 Conn. 102, 103. As such, the plaintiff-parent in Prescott could not overcome the municipal immunity that shielded the defendant from liability for discretionary acts. Id." 103, 108.
However, under the foregoing analysis, the present plaintiff is clearly entitled to the heightened duty that the government owes to any in attendance at a mandatory school session. Durrant acknowledges that insofar as the exception to municipal immunity for discretionary acts, "the only identifiable class of foreseeable victims that we have recognized for these purposes is that of school children attending public schools during school hours. `In determining that such schoolchildren were within such a class, we focused on the following facts: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions. Prescott v. Meriden, supra, 273 Conn. at 764, 873 A.2d 175; see also Purzycki v. Fairfield, supra, 244 Conn. at 108-09, 708 A.2d 937; CT Page 19269 Burns v. Board of Education, supra, 228 Conn. at 648-50, 638 A.2d 1." Durrant v. Board of Education, supra, 284 Conn. 107-08. Applying those principles to the pending litigation, theories of governmental and/or qualified municipal immunity alone cannot protect the defendants from liability under the circumstances as alleged in the pending complaint.
The court has concluded that, under the circumstances of the present case, the plaintiff stands as an identifiable victim for municipal immunity purposes. There remains, however, the issue as to whether the child was subject to imminent harm under the alleged circumstances. The court finds this last issue, again, in favor of the plaintiff.
The plaintiff's failure to specifically allege she is a member of an identifiable class of foreseeable victims subject to imminent harm does not defeat her claim. See Durrant v. Board of Education, 96 Conn.App. 456, 464-65, 900 A.2d 608, cert. granted, 280 Conn. 915, 908 A.2d 536, (2006) (the plaintiff met the standard for the imminent harm foreseeable victim exception even, cert. granted, though she "did not specifically allege in her complaint that she was a member of an identifiable class of foreseeable victims subject to an imminent harm").
Imminent harms exists where "the danger [is] limited to the duration of the temporary . . . condition . . . [and that] the potential for harm . . . was significant and foreseeable." Burns v. Board of Education, supra, 228 Conn. 650. In Burns v. Board of Education, supra, 228 Conn. 640, the plaintiff schoolchild slipped and fell on an icy courtyard in a main accessway to the school campus. The court held that there was an imminent danger because "this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly `treacherous' area of the campus." Id., 650. In Purzycki v. Fairfield; supra, 244 Conn. 101; the plaintiff schoolchild was injured when another student tripped him in an unmonitored school hallway. The Purzycki court determined that its facts were reasonably "analogous to Burns . . . [T]he present case involves a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess. Also, it involves a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision." (Citation omitted.) Purzycki v. Fairfield, supra, 244 Conn. 109-10. Similarly, in Colon v. New Haven, supra, 60 Conn.App. 178, the plaintiff schoolchild was injured when she was struck by a door opened by a teacher in an allegedly dangerous manner. The Appellate Court held that the plaintiff was subject to imminent harm because "[t]he danger presented was limited in duration, as it could happen only when students are in the hallway in a dangerous spot. Moreover, the potential for injury from being hit by an opening door is significant." Colon v. New Haven, supra, 60 Conn.App. 187.
In reaching its overall determination, the court acknowledges that Durrant fails to make mention of Colon v. New Haven, 60 Conn.App. 178, 183 et seq., 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) (municipal immunity did not shield the defendant from liability where a teacher's negligent opening of a door causing harm to a student in the school hallway constituted a discretionary act, but the student was "an identifiable person subject to imminent harm" so that governmental immunity did not apply).
The facts as alleged in the 2004 complaint, with the inference that may properly be drawn from those facts, are sufficient to establish that the incident occurred not only when the child was an identifiable victim upon school grounds, but also when she was subject to imminent harm from the cafeteria table at issue. The Burns, Purzycki, and Colon measures are clearly applicable to the circumstances under which it is alleged that she child was injured when this pleading is viewed in its most favorable light. See Cox v. Aiken, supra, 278 Conn. 211; Cogswell v. American Transit Ins. Co., supra, 282 Conn. 516. Thus, the 2004 complaint reasonably provides basis for concluding that the alleged harm was both limited in duration and geographic scope, and was significant and foreseeable. The harm could have occurred only during the limited period of time when the tables were latched to the wall while students were in the cafeteria, using that room for a designated school purpose unrelated to the table itself. The zone of danger was limited to the area directly under and around the table. The potential injury to a child who is struck by a falling cafeteria table is significant and foreseeable. As a result of these factors, the plaintiff was subjected to imminent harm while engaged in mandatory school activities on school premises. Purzycki v. Fairfield, supra, 244 Conn. 109-10; Burns v. Board of Education, supra, 228 Conn. 650; Colon v. New Haven, supra, 60 Conn.App. 187.
Therefore, although the conduct described in the complaint effectively alleges that the defendants were engaging in discretionary governmental acts insofar as circumstances under which the minor plaintiff sustained injury is concerned, those facts are concurrently sufficient to establish that she was, at the time and place in question, an identifiable person subject to imminent harm upon school grounds. Under these circumstances, the defendants cannot access the protection from liability they seek through application of any facet of the principles providing governmental and/or qualified municipal immunity in other cases. Accordingly, for the foregoing reasons, even if the defendant's motion to dismiss is properly before the court, the issue of subject matter jurisdiction must be found in favor of the minor plaintiff and that motion must be denied.
The defendants further argue that because the claim against Stern is barred by immunity principles, the town is not liable for indemnification under § 7-465. In the absence of relevant law in support of this submission, the court concludes that the applicability of § 7-465 is not relevant to the determination of this motion to dismiss. "The plaintiffs could have pursued an action against the municipality under either § 7-465 or § 52-557n." Gaudino v. East Hartford, supra, 85 Conn.App. 359. Whether or not the plaintiff has not properly alleged a § 7-465 claim has no effect upon the court's subject matter jurisdiction, although it may affect the plaintiff's ability to recover money damages in the event of a verdict against a municipal agent whose discretionary act caused her, an identifiable victim subject to imminent harm, to actually sustain injury.
V. NAMING THE DEFENDANT
The defendants also argue that the motion to dismiss #154 should be granted because D.C. Moore School is not a legal entity capable of being sued. The plaintiff argues that her claims against the board of education should not be dismissed because the failure to cite "board of education" in the complaint presents only a circumstantial defect which can be corrected. Again, without conceding that the motion to dismiss #154 has not properly been brought, the court finds this issue in favor of the plaintiff. "[A] defendant designated by an incorrect name, is referred to as a `misnomer.' It is a circumstantial defect anticipated by General Statutes § 52-123 that can be cured by amendment. A misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant, rather than the legal nature of his existence." Lussier v. Department of Transportation, 228 Conn. 343, 350, 636 A.2d 808 (1994) (holding that the naming of the `State of Connecticut, Department of Transportation,' a legal nonentity, as the defendant on the civil summons form instead of the commissioner, was a misnomer that could be corrected). "When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant." (Emphasis added.) Id.; see also Andover Ltd. Partnership I. v. Board of Tax Review, 232 Conn. 392, 655 A.2d 759 (1995) (designation of the defendant as the board of tax review of the town of West Hartford rather than the town of West Hartford held to be a defect falling within the purview of § 52-123).
As another trial court has succinctly explained, "[Section] 52-123 is applicable where the plaintiff's original error results in the naming of a legal nonentity as a party." BKM Floorcovering v. Orlando Annulli Sons, Inc., Superior Court, judicial district of Hartford, Docket No. CV 98 0576713 (May 2, 2001, Berger, J.) [29 Conn. L. Rptr. 657].
"Whether the plaintiff has misconstrued the identity of his or her intended defendant or merely the intended defendant's legal name or nature is a question that may be answered only after all the circumstances have been examined." Lussier v. Department of Transportation, supra, 228 Conn. 351. The plaintiff has argued, and it is clear from the totality of the circumstances, that she intended to sue the entity that controlled, and was liable for, the operation of D.C. Moore School. This conclusion is derived from the fact that the plaintiff named D.C. Moore School, a legal nonentity, as a defendant upon the complaint, yet the initial summons identified the defendant as "D.C. Moore School, East Haven Board of Education, care of Elizabeth Leary, Town Clerk." (Emphasis added.) Both the plaintiff's initial and first amended complaint evidence the plaintiff's intent to sue the entity that is legally liable for incidents at D.C. Moore School. Moreover, when the defendants' counsel's appearance was filed in this case, it was submitted on behalf of "all defendants" who had been served. See Form JD-CL-12 5-97, filed May 19, 2000. As found in Part I., the court file indicates that as of April 8, 2000, prior to the submission of counsel's appearance, Sheriff White had served, among others, "the within named defendant, D.C. Moore School, East Haven Board of Education, accepted by Elizabeth Leary, Town Clerk, 250 Main Street, East Haven, CT." (Emphasis added.) This service provided the East Haven Board of Education with due notice of the pending litigation involving the injuries the plaintiff sustained on the premises of the D.C. Moore School. As such, "the defendant was actually served and knew he or she was the intended defendant." Lussier v. Department of Transportation, supra, 228 Conn. 350; see also BKM Floorcovering v. Orlando Annulli Sons, Inc., Superior Court, judicial district of Hartford, Docket No. CV 98 0576713 (Berger, J., May 2, 2001).
The plaintiff does not contest the defendants' cogent claim that D.C. Moore School is not a legal entity. "It can be fairly assumed that the plaintiff did not intend to sue a nonexistent [entity]." Pack v. Burns, 212 Conn. 381, 385, 562 A.2d 24 (1989). Therefore, when viewing the initiating summons and complaint in the light most favorable to the opponent of the motion to dismiss, under the totality of the circumstances in this case, it is clear that the plaintiff sought to name the legal entity responsible for D.C. Moore School as a defendant in her cause of action.
Under General Statutes § 10-240 the municipality controls the board of education that provides services for the schools within its geographical and political confines. "Local boards of education . . . are agents of the towns, subject to the law governing municipalities, when acting on behalf of the municipality in its function of mandating control over the public schools within the municipality's limits. R.A. Civitello Co. v. New Haven, 6 Conn.App. 212, 218, 504 A.2d 542 (1986). The board of education is "not a separate body corporate and politic such as a municipal housing authority established pursuant to General Statutes § 8-40 or a parking authority established pursuant to General Statutes § 7-202. A school district is a body corporate pursuant to General Statutes § 10-241 and pursuant to General Statutes § 10-240 each town is a school district . . . [A]s an agency of the Town, service upon the town clerk as provided in § 13a-149 was sufficient notice to the Board [of education]." Bickerstaff v. Stafford, Superior Court, judicial district of Tolland, Docket No. CV 03 0080409 (August 3, 2004, Scholl, J.) [37 Conn. L. Rptr. 604] (ruling that service of notice upon the town clerk provided adequate notice to the board of education that was responsible for the premise at issue.)
General Statutes § 10-240, which is entitled "Control of schools," states: "Each town shall though 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."
General Statutes § 52-57(b) outlines the proper method of service for towns and town boards, and states, in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . (1) Against a town, upon its clerk; . . . (5) against a board, commission, department or agency of a town . . . upon the clerk of the town. . ." (Emphasis added.) Therefore, by serving the town clerk with its initial complaint, the plaintiff properly served the town and the board of education, and thus further evinced her intent to sue to legal entity responsible for D.C. Moore School. See Part I.
The defendants have not been misled to their prejudice. They knew about the litigation, participated in the defense, knew they controlled and were responsible for the school, and in light of entire complaint, they knew the plaintiff intended to sue the entity that controlled the school. The defendants filed their first motion to dismiss in 2004, descrying the fact that the cause of action had been brought in the name of the child herself, rather than through her next friend. (#129.) The pending motion to dismiss, raising the issue of subject matter jurisdiction as it relates to the status of the municipal defendants, was not filed until some two and a half years later. (#154.) The defendants' second motion to dismiss did not, in its text or in its accompanying memorandum of law, raise the issue of whether the plaintiff had brought her lawsuit against a proper party. (#154, #155.) Instead, that issue was brought to the attention of the court, and to the attention of the defendant, for the first time through the Defendants' Supplemental Brief in Support of Motion to Dismiss, filed several weeks after the second motion itself. (#159.) Thus, despite the vigor and tenacity of the defendants' argument, the court is constrained to conclude that "the proper party had notice of the institution of the action, as evidenced by its years of participation in this lawsuit." Boyd v. Hartford Ins. Co., Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 91 03460 (January 28, 2005, Quinn, J.) [38 Conn. L. Rptr. 601].
The defendants have argued that the plaintiff waited too long to attempt to fix the misnomer problem. This argument is well-vitiated by the fact that the defendants themselves took time to raise the issue.
Therefore, although the name of a legal nonlegal entity may have been presented on the charging document, the governmental defendants were duly served and notified of the pending proceedings. Because the entire name of the proper defendant was clearly set forth in the Summons-Civil form that accompanied the 2000 complaint when originally served, the naming of D.C. Moore School as a defendant upon that complaint, and upon the 2004 complaint, constituted a legal misnomer. As the governmental defendants were fully aware of and have been involved in the litigation from the beginning, the issue of improperly omitting the Board's name from the complaint document itself presents insufficient basis for dismissing the plaintiff's cause of action. Accordingly, if the motion to dismiss (#154) is properly before the court, it must be denied.
VI. SUMMARY JUDGMENT
As previously noted, although the defendants have submitted a motion to dismiss claiming lack of subject matter jurisdiction (#154), they have also requested the court's consideration of such summary judgment issues as may have been raised by this motion, the accompanying memorandum of law, and the two documents attached thereto as exhibits to memorandum #155. (#159.) The pending motion (#154) in and of itself did not provide the plaintiff with notice of the defendants' intention to pursue the summary judgment remedy with regard to the special defense of governmental and/or qualified immunity or concerning any other factual issue. However, the plaintiff's anticipation of such a claim is indicated through her submission of Plaintiff's Objection to Defendant's Motion for Summary Judgment (#152) and Plaintiff's Memorandum of Law in Support of Her Objection to Defendants Motion for Summary Judgment (#153). Accordingly, as the plaintiff and defendants' acknowledge that the subject of summary judgment can been properly raised in this manner, the court next addresses this aspect of the parties' pretrial contest.
See footnote 9.
"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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law . . . Cantonbury Heights Condominium Ass'n, Inc. v. Local Land Development, LLC, 273 Conn. 724, 733, 873 A.2d 898 (2005)." Durrant v. Board of Education, supra, 284 Conn. 99 n. 7. "Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [The moving party] 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 . . . A material fact is a fact that will make a difference in the result of the case . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute." (Internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn.App. 188, 193, 928 A.2d 586 (2007).
Practice Book § 17-45 establishes that "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." In this case, the plaintiff has declined to submit such documents, but the defendants have placed two items before the court. Attached to the defendants' memorandum #155 as "A," they have tendered three pages excerpted from an uncertified transcript purportedly recording deposition testimony of Barbara Stern, named as defendant in the pending action and identified as the principal of the D.C. Moore School. Those pages seem to disclose Stern's untested understanding of the manner in which the tables have been used and secured in the schoolroom in question. In addition, attached to their memorandum #155 as "B," the defendants have proffered four pages excerpted from a certified transcript purportedly recording pretrial testimony of Annie Carusone. Carusone appears to have been the plaintiff's elementary school classmate and former playmate. Those pages reflecting Carusone's testimony apparently disclose the child's understanding of the student activities in the schoolroom in which the plaintiff was injured.
As discussed above, in responding to the defendants' summary judgment issues, the court is obligated to view the defendants' evidence in the light most favorable to the nonmovant-plaintiff. Durrant v. Board of Education, supra, 284 Conn. 99 n. 7. From this perspective, neither "A" nor "B" resolves the genuine issues of material fact raised through the 2004 complaint as to negligence, causation, or legal responsibility for the plaintiff's injuries. Moreover, even when viewed in the light most favorable to the movant, neither documents "A" nor "B" resolve any material issues concerning the defendants' factual roles in the harm suffered by the plaintiff, nor with respect to the issues of governmental and/or qualified immunity raised by the special defense. Thus, neither documents "A" nor "B" resolve all genuine issues of material facts as to the circumstances under which the plaintiff was exposed to and then suffered harm upon school premises, during the school day, while she was assigned to and engaged in a designated school activity, as sufficiently alleged in the complaint. As such, the defendants have failed to meet their burden of showing "that there is no genuine issue as to any material fact and that the moving [parties are] entitled to judgment as a matter of law." Practice Book § 17-49.
Accordingly, to the extent that such a claim has been properly raised before the court, the summary judgment shall not enter, and any motion for summary judgment presented by the defendants must now be denied.
VI. CONCLUSION
As the court has found all operative issues in favor of the plaintiff, the defendants' motion to dismiss (#154) is hereby DENIED; the defendants' motion for summary judgment, presented through their memorandum of law (#155), is also hereby DENIED; and the plaintiff's objection to summary judgment (#152) is hereby SUSTAINED.