Opinion
KNLCV156025052S
10-21-2016
Camren Dickerson PPA Jamie Wilson et al. v. Laura Dunleavy et al
UNPUBLISHED OPINION
RULING ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Robert F. Vacchelli, Judge.
This case is an action by the plaintiffs, Camren Dickerson (" Dickerson") by his mother, Jamie Wilson (" Wilson") and by Wilson, individually, alleging that Dickerson was injured by his kindergarten teachers at the Moriarty Environmental Sciences Magnet School in Norwich, CT on September 11, 2013. The operative amended complaint is in four counts. The First Count is by Dickerson against the defendant, Laura Dunleavy. (" Dunleavy"), a graduate level intern teacher in the kindergarten class, alleging assault. The Second Count is by Dickerson against Dunleavy alleging negligence. The Third Count is by Wilson against Dunleavy for past and future medical and other expenses incurred as a result of Dickerson's injuries. The Fourth Count is by Dickerson against Megan Black (" Black"), his kindergarten teacher, for failure to properly supervise Dunleavy. Pending before the court are motions for summary judgment filed by the defendants as to all counts. Doc. Nos. 126.00 and 130.00. For the following reasons, the court finds that the material facts are not in dispute as to the First Count of the plaintiffs' Amended Complaint and that the defendant, Laura Dunleavy, is entitled to summary judgment in her favor as a matter of law on that count. The motion of the defendant is granted as to that count only. As to the Second, Third and Fourth Counts of the Amended Complaint, the court finds that the material facts are in dispute preventing summary judgment as to those counts. Therefore, the motions of the defendants are denied as to those counts. The case remains pending as to the defendant, Dunleavy, as to Counts Two and Three and it remains pending as to the defendant, Black, as to Count Four.
The defendant is now married and known as Laura Grzewinski. The court will continue refer to her as Laura Dunleavy as that is the name used in the caption of the case.
I
The law governing summary judgment is well-settled. As our Appellate Court has summarized:
Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings. (Citation omitted; internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).
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In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).
It is frequently stated in Connecticut's case law that, pursuant to Practice Book § § 17-45 and 17-46, a party opposing a summary judgment motion " must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999). As noted by the trial court in this case, typically " [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Moreover, " [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Citations omitted; internal quotation marks omitted.) Id., 244-45.Rockwell v. Quintner, 96 Conn.App. 221, 227-29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
The Practice Book further mandates that " [a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings." Practice Book § 17-45. " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46.
II
In support of their motions, the defendants filed affidavits of parties and witnesses, excerpts from the deposition of the plaintiff, Wilson, and discovery responses. In opposition, the plaintiffs filed excerpts from Wilson's deposition, discovery response and witness statements.
The defendants object to the court considering any testimony by Wilson in her deposition as she was not present at the school, and any information she has is based on hearsay. The objection is overruled, in part, and granted, in part. " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . ." Rockwell v. Quintner, 96 Conn.App. 221, 233 n.10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). The court will not consider facts based on hearsay; but, to the extent that Wilson repeats statements made by Black, that evidence is admissible. Statements by a party opponent offered against that party are admissible as an exception to the hearsay rule. See Conn. Code of Evidence, § 8-3(1). To the extent that she reports her observation of marks on Dickerson and other information on which she has personal knowledge, such information is not hearsay. Id., § 8-1. To the extent that the information is based on information concerning injury given to health care providers in the emergency room after the events, made for the purposes of treatment, that information is also an exception to the hearsay rule. Id., § 8-3(5). Also, to the extent that the defendants submitted portions of Wilson's deposition testimony in support of their motions, their objections to that material are waived.
Based on the admissible materials supplied, and viewing the evidence in the light most favorable to the opponents as required, the court finds that the following material facts are not in dispute: On September 11, 2013, the plaintiff, Dickerson, who was four years old at the time, was attending his regular lessons at Moriarity School in Norwich, CT, under the direction of his kindergarten teacher, the defendant Black, and her intern assistant, the defendant Dunleavy.
On that date, shortly after students entered the classroom after breakfast, all students were asked to come to the carpet for reading time. Dickerson would not come to the carpet, and stayed by the cubbies and then played in the kitchen. He was repeatedly asked by Black to come to the carpet, but he ignored her requests. He eventually came over near the group on the carpet and sat under a table. He stayed under the table for about 45 minutes. He requested, and was permitted, to use the bathroom. Upon return, he would not sit on the carpet but he stood near Dunleavy and watched. Dickerson gradually started to get closer to the group. Black again asked him to join the group. Dickerson became upset, shouted " No, " made a growling noise and ran out of the room.
Black remained in the classroom, but Dunleavy ran after Dickerson. She convinced him to stop and return to the classroom by telling him they were about to start an activity that he enjoyed. She took him by the hand and started to bring him back into the classroom. Dickerson suddenly stopped and Dunleavy kept pulling until injury became a concern. Wilson testified that Black said that Dunleavy was pulling on Dickerson's arm so much that they thought his arm was going to be pulled out of the socket. Dunleavy then let go of Dickerson's hand. Dickerson fell and hit his head. He got up and ran down the hall, where he was eventually blocked by another teacher. He then turned and ran into the art room. Dunleavy had no further interaction with Dickerson. She filed an affidavit stating that she ran after Dickerson in the hallway for his safety, as it would not have been safe for him to roam the hallways unattended, that she let go of his hand so as not to hurt him, and that she did not act with ill or malicious intentions.
The Principal, Rebecca Pellerin, was called to intervene. Dickerson was found in the art room, rolling around on the floor under the art room tables. After some coaxing, Dickerson eventually went with the principal to her office. Wilson was then called and was told of the problem. She was asked if she would like to pick up Dickerson or have him brought back to the classroom. She responded that she would pick him up.
Wilson subsequently brought Dickerson to the Backus Hospital emergency room on the evening of September 12, 2013, after he complained of arm pain. He had bruises on his arm and scratches on his face.
Prior to these events, due to an earlier incident, Wilson had been informed by Black and the school principal that if Dickerson did not want to go to the carpet for reading, he would be allowed to sit at his desk, instead.
Additional factual findings necessary for resolution of the issues will be set forth below as needed.
III
The defendant, Dunleavy, moves for summary judgment in her favor as to the First Count of the Amended Complaint. That count alleges assault. The Amended Complaint alleges that Dunleavy's contact with the plaintiff was done without consent and without any legal cause and/or justification; rather, it was done intentionally and maliciously, constituting the tort of assault.
Assault, (or battery or assault and battery as it is sometimes called) is a harmful or offensive contact with the person of another. A harmful contact is one that causes physical impairment of the condition of another's body, physical pain, or illness. An offensive contact is one that offends a reasonable sense of personal dignity. The contact must be the direct and immediate consequence of a force exerted by the defendant intentionally, wantonly, or without the exercise of due care. Connecticut Civil Jury Instructions § 3.13-2 citing Sansone v. Bechtel, 180 Conn. 96, 99, 429 A.2d 820 (1980); 2 Restatement (Second), Torts § § 13, 14, 15, 19 (1965); see also Alteiri v. Colasso, 168 Conn. 329, 334 n.3, 362 A.2d 798 (1975).
Here, the plaintiff has alleged intentional assault. The Amended Complaint alleges that the defendant acted intentionally and maliciously. " 'Intent' involves . . . a state of mind about consequences of an act (or omission) and not about the act itself, and . . . it extends not only to having in mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act . . . Also, the intentional state of mind must exist when the act occurs . . . Thus, intentional conduct " extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does . . . Furthermore, it is not essential that the precise injury which was done be the one intended Rather, it is an intent to bring about a result which will invade the interests of another in a way that the law forbids." (Citations omitted; internal quotation marks omitted.) American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 776, 607 A.2d 418 (1992). Malice, in this context, similarly involves a state of mind. " In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . ." (Citations omitted; internal quotation marks omitted.) Shay v. Rossi, 253 Conn. 134, 181, 749 A.2d 1147 (2000).
It must be kept in mind, however, that the actor in this case was in the role of teacher. " [T]eachers are accorded certain legal protection in their administration of discipline. A teacher is a surrogate parent to [her] pupils . . . This relationship imposes upon [her] a duty to maintain discipline in [her] classroom . . . In discharging this duty the teacher is authorized to use reasonable means to compel a disobedient pupil to comply with [her] orders." (Citations omitted.) Sansone v. Bechtel, supra, 180 Conn. 99. See also General Statutes § 53a-18(6).
General Statutes § 53a-18(6) provides:
In this context, the undisputed material facts based on the admissible evidence of record demonstrate that the defendant acted with intent to maintain order in class and to protect the safety of the student who was running and acting out of control, and that it was her intent to act within the bounds of her legal privilege. The plaintiff has failed to raise any issue of material fact that might demonstrate intentional or malicious conduct constituting assault which could forestall summary judgment on this count.
Ordinarily, the summary judgment procedure is particularly inappropriate where the inferences which the party seeks to have drawn deal with questions of motive, intent and subjective feelings and reactions. See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). However, in this case, the defendant has offered an affidavit attesting to her intent. The plaintiff has offered no affidavit from any witness with personal knowledge of the events at school during pertinent times, and she put no admissible evidence in the record that disputes the statements of the teacher with regard to her intent. Under these circumstances, summary judgment in favor of the defendant is appropriate. Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 108 citing Mingachos v. CBS, Inc., 196 Conn. 91, 114, 491 A.2d 368 (1985).
Accordingly, summary judgment shall enter in favor of the defendant, Laura Dunleavy, on Count One of the plaintiff's Amended Complaint.
IV
The defendant, Dunleavy also asks the court to render judgment in her favor on the Second and Third Counts of the Amended Complaint, which allege negligence. The defendant, Black, similarly moves for summary judgment on the Fourth Count, which also alleges negligence. Both defendants claim that they are protected from liability by governmental immunity. Governmental immunity protects municipal officials and municipalities from liability for " 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." General Statutes § 52-557n(a)(2)(B). The defendants were authorized to exercise discretion in their management of the classroom in this case. However, there is an exception to governmental immunity which the plaintiffs argue is applicable in this case: the identifiable person-imminent harm exception to governmental immunity.
The plaintiffs do not dispute that the actions of the defendant, Black, were discretionary in nature. However, they argue that there are material issues of fact in this case as to whether the defendant, Dunleavy, was authorized to exercise any discretion in this circumstance because the school had a regulation in force that prohibited students in the halls during class unless accompanied by a teacher or having a hall pass from an authorized staff member. Regulation 5131.2 (Classroom, Hall and Grounds Conduct.) It also had a regulation concerning persons at risk that required school employees to avoid the use of physical restraint on such students except in emergencies, or where restraint involved minimum contact necessary to safely escort a person from one area to another, or as otherwise allowed by law. Regulation 5144. (Restraint and Seclusion of Persons at Risk.) They argue that these regulations eliminated discretion, created a ministerial duty, and there is no governmental immunity for the breach of a ministerial duty. Kolaniak v. Board of Educ., 28 Conn.App. 277, 281-82, 610 A.2d 193 (1992) (school snow removal procedures created a ministerial duty). The court is not persuaded. The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. Bonington v. Town of Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010); Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). An act is ministerial where, for example, it is required to be performed in a prescribed manner by a city charter provision, ordinance, regulation, rule policy or any other directive. Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006); see, e.g., Kolaniak v. Board of Education, supra . In the instant case, Regulation 5131.2 applies to students, not teachers, and Regulation 5144 only applies to teachers handling " persons at risk." A person at risk is defined in the regulation as " A child who meets the eligibility criteria for special education services under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (" IDEA"), and who is receiving special education from the Board of Education, or a child who is being evaluated for eligibility for special education pursuant to statute and awaiting a determination." There is nothing in the record documenting that Dickerson was receiving/being evaluated for special education and the plaintiffs do not so contend. The regulations, therefore, are inapposite.
The identifiable person-imminent harm exception has three requirements: (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. All three must be proven in order for the exception to apply. Edgerton v. Town of Clinton, 311 Conn. 217, 230-31, 86 A.3d 437 (2014). The parties agree that Dickerson was an identifiable victim. Thus, the second element has been satisfied. They disagree on whether the plaintiffs have evidence that can satisfy the first and third elements.
As to the first element, our Supreme Court has held that " the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." Haynes v. City of Middletown, 314 Conn. 303, 322-23, 101 A.3d 249 (2014). Our Appellate Court has further broken out the imminent harm test into four prongs, as follows:
Thus, as we view Haynes, in order to qualify under the imminent harm exception, a plaintiff must satisfy a four-pronged test. First, the dangerous condition alleged by the plaintiff must be " apparent to the municipal defendant." Id. We interpret this to mean that the dangerous condition must not be latent or otherwise undiscoverable by a reasonably objective person in the position and with the knowledge of the defendant. Second, the alleged dangerous condition must be likely to have caused the harm suffered by the plaintiff. A dangerous condition that is unrelated to the cause of the harm is insufficient to satisfy the Haynes test. Third, the likelihood of the harm must be sufficient to place upon the municipal defendant a " clear and unequivocal duty"; id.; to alleviate the dangerous condition. The court in Haynes tied the duty to prevent the harm to the likelihood that the dangerous condition would cause harm. Id., at 321, 101 A.3d 249. Thus, we consider " a clear and unequivocal duty"; id., at 323, 101 A.3d 249; to be one that arises when the probability that harm will occur from the dangerous condition is high enough to necessitate that the defendant act to alleviate the defect. Finally, the probability that harm will occur must be so high as to require the defendant to act immediately to prevent the harm.Williams v. Housing Authority of the City of Bridgeport, supra, 159 Conn.App. 679, 705-06, 124 A.3d 537, cert. granted, 319 Conn. 947, 125 A.3d 528 (2015) (emphasis in original).
As to the third element, in order to meet the apparentness requirement, the plaintiff must show that the circumstances would have made the government agent aware that his or her acts or omissions would likely have subjected the victim to imminent harm. This is an objective test pursuant to which we consider the information available to the government agent at the time of her discretionary act or omission. Edgerton v. Town of Clinton, supra, 311 Conn. 231. Our Appellate Court has further explained that a plaintiff must prove not only that it was apparent that a victim was at risk of imminent harm, but also that it was apparent to the defendants that the defendants' chosen response to the imminent danger would likely subject the victim to that harm. Brooks v. Powers, 165 Conn.App. 44, 61, 138 A.3d 1012, cert. granted, 322 Conn. 907, 143 A.3d 603 (2016). It must be shown that the defendants had sufficient information that would have made that risk of imminent harm apparent to them. Id., 66.
On these points, the court finds that the plaintiffs have come forward with sufficient evidence that casts into dispute the issues of whether the defendant, Dunleavy, and her supervisor, acted appropriately under the circumstances. There is some evidence that during the struggle, Dickerson was at risk of getting hurt, and that it was apparent to the defendants that their chosen response to the imminent danger would likely subject the victim to that harm. Viewing the evidence in the light most favorable to the opponents, as the court must do in such a motion for summary judgment, Ramirez v. Health Net of Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008), the court cannot find that the defendants are entitled to judgment as requested as a matter of law on these issues. " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but, rather, to determine whether any such issues exist." (Citation omitted.) Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment is to be denied where there exist genuine issues of fact and inferences of mixed law and fact to be drawn from the evidence before the court. Rickel v. Komaromi, 144 Conn.App. 775, 791, 73 A.3d 851 (2013). Such issues exist in this case. Accordingly, the defendants' motions for summary judgment as to the Second, Third and Fourth Counts are denied.
V
For all of the foregoing reasons, the court finds that the material facts are not in dispute as to the First Count of the plaintiffs' Amended Complaint and that the defendant, Laura Dunleavy, is entitled to summary judgment in her favor as a matter of law on that count. The motion of the defendant is granted as to that count only. As to the Second, Third and Fourth Counts of the Amended Complaint, the court finds that the material facts are in dispute preventing summary judgment as to those counts. Therefore, the motions of the defendants are denied as to those counts. The case remains pending as to the defendant, Dunleavy, as to Counts Two and Three and it remains pending as to the defendant, Black, as to Count Four.
A teacher or other person entrusted with the care and supervision of a minor for school purposes may use reasonable physical force upon such minor when and to the extent he reasonably believes such to be necessary to (A) protect himself or others from immediate physical injury, (B) obtain possession of a dangerous instrument or controlled substance, as defined in subdivision (9) of section 21a-240, upon or within the control of such minor, (C) protect property from physical damage or (D) restrain such minor or remove such minor to another area, to maintain order.