Opinion
No. CV04-0490216S
December 19, 2007
MEMORANDUM OF DECISION ON BOARD OF EDUCATION'S AND TOWN'S MOTION FOR SUMMARY JUDGMENT I ( a)
In this case the complainant minor child, by and though her mother, has brought suit against the Clinton Board of Education, (Board), the Town of Clinton (Town) and Joanna Diaz (Diaz). The child at all times referred to in the complaint was a special education student in a middle school in the Town and the complaint further alleges the Town operated the school though the Board.
The defendant Diaz was employed by the defendant Town and the defendant Board as a teacher's aide for special education students at school; the plaintiff was a student in a special education class taught by and supervised by both Diaz and another teacher, Jill DeStefano, who were employed by both the Town and the Board.
The First Count which is brought against the Town and the Board alleges that from September 2001 through April 2002, Diaz developed "inappropriate interest in the plaintiff and initiated activities with the plaintiff demonstrating such interest." A series of activities is then alluded to in the complaint. It is then alleged that "on several occasions in April 2002, Diaz sexually assaulted the plaintiff, a minor at the time, in violation of Connecticut General Statutes § 52a-71" at a public library in the Town.
The action is brought pursuant to § 52-557n of the General Statutes. The plaintiff claims the previously mentioned occurrences were known or should have been known "to teachers and others" employed by the Board and that by engaging in the activities, Diaz exploited her position as a teacher and employee of both the Town and the Board. It is then claimed the incidents alleged were due to the negligence of the Town and Board in several ways that are alleged, all to the injury of the plaintiff.
The Second Count against the Town and the Board repeat the factual allegations of the First Count. It alleges a breach of fiduciary duty pursuant to § 52-557n. In support of the latter allegation, it states that these defendants, through their agents and employees, "had superior knowledge, skill or expertise compared to the minor plaintiff," and the relationship between them and the child "was characterized by a unique degree of trust and confidence." This count goes on to allege these defendants, through their agents and employees, breached their fiduciary duty to the minor plaintiff in the factual ways alleged in the First Count, all to the injury of the plaintiff child.
The Third Count lies against the Town also pursuant to § 52-557n of the General Statutes. In that count it is alleged that the library referred to previously "is a public library maintained, controlled and operated by the Town of Clinton." It goes on to say children and students of the Town's schools "frequently visit the public library." The library "frequently holds programs and events geared towards children and students in the Town of Clinton." Then this count states that beginning on around February 2002 and through April 2002, "the defendant, Joanna Diaz, went to the public library in the Town of Clinton with the plaintiff alone on multiple occasions" (Para. 13). Paragraph 14 states that during these visits, Diaz "engaged in conduct from which a reasonable person could infer an inappropriate relationship including holding the plaintiff's hands and kissing him inside the public library. It then refers to the previously mentioned sexual assaults which occurred "in the parking lot of the public library." Paragraph 16 says these occurrences "were known or should have been known by those employed by the Town of Clinton at the public library," and were due to the Town's and its agents' and employees' negligence, all to the harm of the plaintiff.
( b)
Both the Town and the Board have filed motions for summary judgment. The standards to be applied on such motions is well known. The court cannot decide a disputed issue of material fact as a basis to grant such a motion since a party is constitutionally entitled to a trial on the merits. On the other hand, if no such dispute over a material fact exists, the court should grant the motion to save parties from the burden and expense of litigation.
II
CT Page 21918
( a)
The First, Second, and Eighth Counts are directed against the Town and the Board. The Eighth Count seeks reimbursement for medical treatment allegedly necessitated by the actions of Diaz. The First and Second Counts are based on § 52-557n of the General Statutes. The First Count is entitled, "Negligence as to the Board of Education . . ." The Second Count is entitled "Breach of Fiduciary Duty as to the Board of Education . . ."The relevant portion of § 52-557n reads as follows:
Sec. 52-557n. Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions. (a)(1) 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; . . . (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: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (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.
A city agency is apparently considered to be a "political subdivision of the state." See O'Connor v. Board of Education, 90 Conn.App. 59, 66 (2005).
As an aside, it would appear that the second count is redundant. Paragraph 16 says Town and the Board, through their agents, servant or employees, "breached their fiduciary duty to the minor plaintiff in one or more of the ways enumerated in Paragraph 14 above." That paragraph incorporates Paragraph 14 of the First Count which sets forth a claim of "negligence and carelessness" in ten subparagraphs. Inotherwords, both counts proceed under subsection (a)(1)(A) of § 52-557n which provides for an action in negligence against the political subdivision. In negligence law, the duty whose violation gives rise to a tort claim "may arise from a special relationship that requires the defendant to protect against the risk of harm to plaintiff," 532 Madison Gourmet Foods v. Finlandia Center, 750 N.E.2d 1097, 1101 (N.Y. Ct of App., 2001). A fiduciary of quasi-fiduciary relationship can give rise to such a duty, cf. Tozer v. Scott Wetzel Services, 883 P.2d 496, 498 (Colo.App. 1994); Galactic Employer Services v. McDorman, 880 So.2d 434, 438 (Ala.Civ.App. 2003); 57 Am.Jur.2d, "Negligence" at § 81, pp. 152-53. Inotherwords, since the Second Count is based on § 52-557n, it cannot go beyond the ambit of relief provided by that section along with its limitations. The mere reference to a fiduciary duty under these circumstances cannot go beyond the negligence action permitted by § 52-557n which would otherwise be permitted under negligence law against both these defendants since the plaintiff was a student and was using the library. Section 52-557n merely restricts the reach of such a remedy based on, for example, whether the complained of action was discretionary — modified as that concept is, by court created exceptions.
Another preliminary matter must be discussed before the court turns to the central issue presented by this motion — the discretionary action bar to recovery and the application of the exception to it. Subsection (2)(A) of § 52-557n states liability, except as provided by law for damage to persons "caused by: (A) acts or omissions of any employee, officer, or agent which constitutes criminal conduct, fraud, actual malice or wilful misconduct." It takes no lengthy citation to authority to conclude that the acts attributed to Diaz constitute an intentional, therefore wilful, pattern of conduct which culminated in the alleged sexual assault of the plaintiff pursuant to § 53a-71 of the General Statutes.
By its reference to § 52-557n, however, and given that the obligation of the court to interpret the pleadings in a manner most favorable to the plaintiff, the basis of this action does not lie in respondeat superior or some notion that, because Diaz was an employee of the Board or Town, these entities, given that relationship, are liable to the plaintiff. The whole basis of the allegations in Paragraph 14 of each count is a failure to monitor, train, make inquiry, institute policies reasonably hire or otherwise "take action to prevent injury to the plaintiff." Inotherwords, the claim is that these failures permitted Diaz to engage in those intentional activities which caused harm to the plaintiff. The plaintiff cannot, does not, and need not claim under § 52-557n that Diaz was acting within the scope of her employment in her intentional abuse of the minor plaintiff.
( b)
The first count lies in negligence against the Town and the Board pursuant to § 52-557n. The court will now try to address the issue of whether the failure of the defendants to supervise the relationship between Diaz and the plaintiff was a discretionary act and if it was, can liability be imposed on them defeating a claim of governmental immunity based on the nature of such government activity, because it falls within one of the enumerated exceptions to governmental immunity for discretionary acts.
It is generally recognized that failure to supervise students or perhaps better put, the provision of adequate security to protect students from injury of a physical or emotional nature caused by other students is a discretionary government activity, Doe v. Board of Education, 76 Conn.App. 296, 302 (2003); Purzycki v. Fairfield, 244 Conn. 101, 108 (1998); Convey v. City of Rye School District, 710 N.Y.S.2d 641, 271 A.D.2d 154, 159 (2000); Rupp v. Bryant, 417 So.2d 658, 666 (Fla. 1982); Randell v. Tulsa Independent School District, 889 P.2d 1264, 1267 (Ok.Civ.App. 1994), cf. Sutphen v. Ben Thian, 397 A.2d 709 (1979). It would seem to follow that school authorities have a duty to protect their students from sexual or physical assaults by school staff, see the analysis in Doe v. Peterson, 279 Conn. 607 (2006), which accepted the principle and analyzed the problem before it by first positing such duty was discretionary then further concluding that an exception to non-liability could not be found. The circumstances of the case did not make it apparent to the Town, the defendant in that case, that its failure to act through one of its agents "would be likely to subject an identifiable person to imminent harm." Id. page 616.
The plaintiff's allegations, then, throw into question discretionary actions or failures to act by the defendants. The question then becomes, given the circumstances of this case, is discretionary act immunity abrogated because these circumstances would "make it apparent to the public officer (here the Board and Town) that his or her (or their) failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm," Doe v. Peterson, supra, 279 Conn. at page 616. This is the only exception to governmental immunity for discretionary acts which applies.
This is the test the court will apply to determine whether governmental immunity applies.
( c)
What are the facts and circumstances of this case brought to the attention of the court by both sides? There is no dispute as to whether the sexual contact and sexual assault took place. Ms. Diaz, as previously indicated, was a teacher's aide in a classroom where the teacher was a Jill DeStefano. The mother of the plaintiff student, Jane Doe, was deposed. She said Diaz contacted her and wanted to take her son, John Doe, to play basketball. She represented she was divorced and she was lonely on the weekends and she was lonely. This was fine with the mother, since John Doe was having trouble making friends. After the first meeting with Diaz, Diaz did things with the son John Doe outside of school; "some things were done with Ms. DeStefano": they'd go bowling or to the movies. It was generally playing basketball after school — once in a while they'd go to the library. In the beginning Diaz was not alone with John Doe (to the mother's knowledge) when DeStefano participated in these activities. Jane Doe thought other students were present, but she did not think DeStefano was present at the basketball activity but was aware of it. The mother indicated other children were present at basketball besides her son, John Doe. John Doe told his mother of hand-holding between him and Diaz on school grounds. She did not bring this to the attention of anyone at the school. Jane Doe was not aware that any school authorities knew of the inappropriate contact between her son and Diaz.
John Doe was also deposed, portions of the deposition were attached to the Board's motion and submitted by the plaintiff. He testified Diaz started to give him "special attention" at school. She started to give him more attention than the other children in the class, bringing him into a separate room at times which she never did with the other children. At one point in his deposition John Doe said Diaz did not spend a lot more time at school with him, but "a little bit more."
It is also true, however, that John Doe would be alone with Diaz. It was "not often" but would occur when the other students went into mainstream and he was left alone with Diaz; DeStefano would go with the other students. He would be alone with Diaz for one-half to three-quarters of an hour on these occasions. One thing happened at school which John Doe believed was inappropriate. Diaz held his hand when he was left in the classroom with her. Regarding this incident the following then occurred at the deposition of John Doe:
Q. Was anyone else in the room when she (Diaz) held your hand? A. I heard a noise behind me and Ms. DeStefano was standing behind me.
He didn't know if Ms. DeStefano could see the hand-holding incident. When it happened they were sitting at a desk and Diaz held his hand not over the desk, but beside it. John Doe then said: "When I heard Ms. DeStefano come in I pulled my hand away." Beside this incident, John Doe said no other inappropriate activity occurred at school — hand-holding, kissing, hugging, etc.
Jill DeStefano was also deposed. She said John Doe would not be left in the room with Diaz but in any event, testified she never saw Diaz holding John Doe's hand when she walked in behind them. She also said she never saw Diaz touch the plaintiff.
DeStefano said she knew Diaz would include John Doe in her after-school activities with Diaz's own children. She did not know of times when outside of school Diaz spent time with John Doe when the children of Diaz were not present. In any event, she thought this activity was infrequent. Diaz's own children would come to the school and tell DeStefano of these activities — two of her children attended the school at which John Doe was a student. DeStefano never knew about trips to the library or attendance at movies by Diaz and John Doe. She also said she never told Diaz to engage in these activities with John Doe which occurred after school.
As to the sex that occurred between John Doe and Diaz, they occurred only at a park in Clinton or in the library parking lot. John Doe does not know if anyone could have seen what was happening. John Doe said a Mr. Quinn or Quincy saw Diaz and him at the library where Diaz would sometimes take him. He was a school counselor. John Doe does not know if this individual saw kissing or hand-holding going on which the complaint alleges occurred at the library. This man also went to speak to the mother but the mother said at her deposition: "It was already out in the open when he spoke to me" — her response, however, is somewhat confusing in relation to the incidents in question.
Speaking of the contact with this Mr. Quinn or Mr. Quincy, the mother said:
Q. Okay. Could you explain what the circumstances were that led him (Quinn) to come to speak to you.
A. I can't. The incident had already happened. It was already out in the open when he spoke to me. It wasn't before . . ."
Further, deposition testimony by John Doe revealed that Diaz and John Doe started calling each other at home and gave him gifts. John Doe said these gifts were not given in front of DeStefano and no one else was in the classroom when this happened.
Given the foregoing factual background which present the "circumstances" of the case necessary to determine whether given the discretionary nature of the defendants' duty, an exception to the rule barring liability applies. The exception with which we are concerned with, as noted, permits abrogation of governmental immunity when the circumstances make it apparent that a failure to act would be likely to subject an identifiable person to imminent harm. The plaintiff, as in Doe v. Peterson, was certainly an identifiable person but as Doe v. Peterson, supra, made clear, "the core requirements of the `imminent harm' exception are read conjunctively" id. 279 Conn. Page 620. As the court then said:
To prevail, the plaintiff must demonstrate that she was an identifiable person and was subject to imminent harm and that a public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to her.
Assuming for the purposes of discussion that while Diaz was holding this youngster's hand, the classroom teacher, DeStefano, observed this or a question of fact remained as to whether she saw this act, the question that would be presented is, whether it should have been apparent because of this observation that this youngster was in imminent harm and DeStefano's failure to act subjected to him to the despicable incidents in question despite the apparent likelihood of such harm.
At least in the court's opinion the answer has to be no. There is no background supplied or context — was his hand held with both of Diaz's hands; what were the facial expressions, etc. This incident also has to be put in perspective — even John Doe's deposition testimony indicates this was the only inappropriate or suggestive act that occurred in the school or even on school grounds. Ms. DeStefano knew Diaz was engaged in after-school activities with the plaintiff, but as the previous discussion indicates, she had reason to believe that Diaz's children were also involved in these activities — the children of Diaz told her so. True, although DeStefano denies the possibility, the plaintiff said he was left alone in the classroom with Diaz while DeStefano and the other children went off to a mainstream class. If that is in fact the case, it assumes the conclusion to say this presented an occasion of imminent harm and that DeStefano's conduct in permitting it, subjected him to the apparent danger.
No factors have been brought to the court's attention to indicate the mainstreaming of the other students leaving the plaintiff behind was somehow engineered by Diaz and DeStefano should have been aware of this.
Given everything DeStefano knew about the plaintiff's involvement in special education and Diaz's efforts to befriend him, the simple act of holding the youth's hand could just as likely be interpreted as an act of affectionate support — especially in light of the fact, as noted, that no other inappropriate "incidents" occurred in the school according to John Doe's own testimony. In the court's opinion, the mere act of observing this isolated hand-holding incident would not have made it apparent to Ms. DeStefano that her actions or failure to act in relation thereto would subject this student to danger of imminent harm and sexual exploitation. The rubric usually repeated in these cases is that the "dangerous condition" must be limited both in duration and geography so as to make it apparent to school authorities of the imminent harm a child was exposed to does not seem helpful in a case involving sexual predatory behavior as opposed to cases where liability is predicated on a patch of ice at the school entrance or a hallway made boisterous during lunchtime, see Burns and Purzycki. But it does focus on the fact that the condition or circumstance at hand must be in fact "dangerous." If the circumstances presented are not dangerous, how could it be "apparent" to a teacher that her actions or failure to act would present a situation of imminent harm.
As said by the court in Violano v. Fernandez, 280 Conn. 310 (2006), when talking about the exceptions to governmental immunity for discretionary acts said: "Each of these exceptions represents a situation in which the public official's duty to act is (so) clear and unequivocal that the policy rationale underlying discretionary act community — to encourage municipal officers to exercise judgment — has no force." That is a question of law for the court where the facts are admitted or taken to be true, as here, for the purposes of discussion.
Even if the court is wrong in the foregoing analysis, an even more important predicate has not been satisfied. It is difficult to see how a reasonable trier of fact could conclude DeStefano actually observed the hand-holding, she denies making the observation and more to the point the plaintiff's deposition testimony on this point is confusing and speculative at most and at worst, for his position, contradicts any conclusion that Ms. DeStefano observed anything.
As the court has discussed, the plaintiff did say in response to a question as to whether anyone else was in the room when Diaz held his hand — "I heard a noise behind me and Ms. DeStefano was standing behind me." But then he said he did not know if she could see the hand-holding. Diaz was not holding his hand over the top of the desk at which they were sitting, but beside it. He then said when I heard Ms. DeStefano come in he pulled his hand away.
The court concludes that the defendants should prevail on its motion for summary judgment on the first and second count.
III
A claim is made pursuant to § 52-557n in the third count of the complaint and is directed against the Town. This count frankly has presented real problems for the court. That count says in paragraph 9 that the Henry Carter Hull Library "is a public library maintained, controlled, and operated by the Town of Clinton. Children from the public schools often visit the library and programs and events are geared to children and students in the Town (paragraphs 11 and 12). The complaint in the next three paragraphs says between February and April 2002, Diaz went with the plaintiff alone to the library. At said times Diaz engaged in conduct which a reasonable person could infer was inappropriate, including hand-holding and kissing. On several occasions in April 2002, Diaz sexually assaulted the minor plaintiff in violation of § 53a-7 of the General Statutes in the library parking lot.
Paragraph 16 says these occurrences "were known, or should have been known, by those employed by the Town of Clinton at the public library."
Paragraph 17 then goes on to allege various specifications of negligence against the Town, its agents, servants or employees. It is alleged that:
(a) IN THAT it caused or allowed and permitted said parking lot to be and become unsafe for use by children;
(b) IN THAT it caused or allowed and permitted said parking lot to have an insufficient number of employees to provide for the safety and security of children, when it knew or should have known that security in said parking lot was reasonably necessary under the circumstances;
(c) IN THAT it caused or allowed and permitted inadequate security measures to be undertaken in connection with said parking lot, including inadequately trained employees in charge of security of said area;
(d) IN THAT it failed to use reasonable care in monitoring and inspecting the parking lot for the safety of children, when it knew or should have known that children frequently visit the library;
(e) IN THAT it failed to use reasonable care in monitoring and making reasonable inquiry regarding suspicious activity within the library.
(f) IN THAT it failed to use reasonable care in training library employees to recognize the signs and risk factors of the development of an improper sexual relationship and the inappropriate steps to be taken when such signs or risk factors are noticed;
(g) IN THAT it failed to use reasonable care in reporting suspected child abuse in violation of Connecticut General Statutes § 17a-101 et seq., when there was reasonable cause for suspicion;
(i) IN THAT it failed to conduct proper and reasonable inquiry and inspection, or any inspections, for the purpose of providing adequate safety for children;
(j) IN THAT it failed to take action to prevent injury to the plaintiff and to protect him from sexual assault;
(k) IN THAT it failed to prevent Joanna Diaz from entering the library when it knew or should have known she was carrying on an improper relationship with a student; and
(l) IN THAT it failed to remove Joanna Diaz from the library premises when it knew or should have known she was endangering the welfare of a minor on the premises.
As a result of the allegations of the complaint, the plaintiff alleges he has suffered injury and damages which are set forth in the remaining paragraphs of the complaint.
An analysis of the Town's motion for summary judgment requires that two matters be addressed which have been raised by the parties. First it must be determined whether given the pleadings and what has been presented on the motion, the court can conclude that the Town, through its agents or employees conducts the day-to-day operations of the library. If the Town in fact does not do so, no negligence claim can even be considered against it pursuant to Section 52-557n since it cannot be held negligent for acts or failures to act attributable to anyone who is not found to be an agent or employee of the Town. The Town under such circumstances would have no "duty" to the plaintiff or anyone else using the library since it would not be the entity that ran it.
If, however, the Town indeed ran the library and was responsible for its day-to-day operations as conducted by the Town's agents or employees, then a claim can be made under Section 52-557n but the plaintiff cannot prevail on his negligence claim if he does not fall within the particular exception to the governmental immunity otherwise provided under that statutory section. These two issues will be discussed separately.
( a)
The plaintiff is correct in pointing out that, in a supplemental memorandum filed by the Town, the Town claims it cannot be held responsible for the sexual abuse of the plaintiff that is alleged to have occurred at the public library because "said library is a private entity that is not operated or controlled by defendant Town." The defendant argues that the Town cannot raise this defense because it judicially admitted to paragraph 9 of the third count where it is alleged the library in question is maintained, controlled, and operated by the Town of Clinton." In its answer to the complaint as to this paragraph 9, the Town stated "9. The allegations contained in paragraph 9 are admitted." An answer to a complaint is an example of and provides the basis for a judicial admission, Jones Destruction Inc. v. Upjohn, 161 Conn. 191, 199 (1971). As said in Nationwide Mutual Insurance Company v. Allen, 83 Conn.App. 526, 541-42 (2004): "The admission of the truth of an allegation in a pleading is an admission conclusive on the pleader . . . A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted and is conclusive upon the party making it" — conclusive and "irrefutable" that is, "as long as they remain in the case," West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 312 (1986).
There are arguably two exceptions to this rule that judicial admissions have a binding and conclusive effect on the party that makes them. On the one hand, it is said that: "The party against whom the admission is claimed knows that it will be used against him, and he has an opportunity to withdraw or explain it, if the court, in the exercise of a reasonable discretion, allows him to do so," Hirsch v. Thrall, 248 Conn. 202, 207 (1961). This exercise of discretion is apparently more fully explained in a case cited in Hirsch, Kanopka v. Kanopka, 113 Conn. 30, 39 (1931). There the court said a party is bound by a judicial admission "unless the court, in its reasonable discretion, allows the concession to be later withdrawn, explained or modified, if it appears to have been made by improvidence or mistake."
The foregoing is all well and good, but language in some cases suggests a broader exception to the binding effect of a judicial admission. Thus in Bochicchio v. Petrocelli, 126 Conn. 336, 339-40 (1940), the court said a judicial admission "relieves the opposing party of the necessity of proving the fact admitted . . . but it is not conclusive upon him and will not prevail over evidence offered at trial," cited in Ferrara v. Storms, 159 Conn. 259, 261 (1970). As said in Pelter v. Degerring, 136 Conn. 331, 338 (1949), a judicial admission "is not, however necessarily binding on the court, and under the circumstances of a particular case, the court may be justified in disregarding it . . . this follows from the fact . . . that a judge is not mere umpire in a forensic encounter but a minister of justice." Turning to the facts of this case in light of the foregoing case law, the difficulty arises from what occurred at oral argument. Counsel for the Town seemed to argue that its answer by way of admission to the allegation in the complaint that the Town "controlled and operated" the library was not an admission that the Town operates a library and not made by improvidence or mistake — "the Town knows nothing about library business, infrastructure, employees, practices and procedures." The Town does not run the library "the library is its own separate entity." An affidavit submitted by the Town's First Selectmen and the lease between the Town and The Henry Carter Hull Library, Incorporated "certainly seems to support that position." The plaintiff offers nothing to counter the factual representations therein. But the Town's assertion that its admission to paragraph 9 does not contradict its present position does not pass muster. Ordinary English usage would seem to dictate that "operation" and "control" of a library means running it qua library in its day-to-day operations. The addition of the word "maintain" in the complaint, which the Town also admits to, further underlines the notion that regular maintenance functions that might have been retained by the landlord Town under the lease agreement are different in kind from the "operation" and "control" of a library which signify its day-to-day operations.
Under these circumstances the court feels uncomfortable in exercising the broad discretionary power in this situation as those suggested in Bochiccio and Ferreira. This is not a trial situation but summary judgment procedure. The admission, which appears obvious in its implications to the court, may have lulled the plaintiff into concluding that it did not have to rebut or explore the affidavit and lease provisions presented by the Town. On the other hand, given the evidence presented by the Town on this point, the court is reluctant to forestall its ability to present the argument which, if it prevails on, will avoid the burden and expense of litigation. The fairest way to resolve this, in the court's opinion, is to deny without prejudice this particular basis of the Town's motion as to count three because of the current state of the pleadings.
The court agrees with the Town that the plaintiff's position that the library was an arm of the government and the Town was thus a municipal employer of its staff under Lebron v. National RR Passenger, 513 U.S. 374 (1995), and particularly Horwath v. Westport Library Association, 362 F.3d 147 (CA2, 2004). That case was concerned with deciding whether under its particular facts the defendant library was a "state actor" and thus subject to suit for an alleged violation of the plaintiff's rights under the federal Age Discrimination in Employment Act, 29 U.S. (§ 621 et seq. And the civil Rights Act § 42 U.S. (§ 1983)). Under Lebron the court applied specific fact-based tests to decide this question, none of which has been raised by the plaintiff by way of evidentiary submissions.
( b)
The court will now assume that the plaintiff is correct on the judicial admission question and that the Town must be taken to have run the library on a day-to-day basis with library employees in effect being agents of the Town. Under § 52-557n the Town would not be liable for negligence in undertaking the discretionary acts of supervising library facilities or parking areas especially as these functions relate to use of the library by children or students using the library, see earlier cited cases on discretionary nature of supervisory activities.
Liability could only be found if an exception is found under case law to the bar to liability for discretionary actions. Here the only applicable exception is the one discussed in the previous section. Thus "liability may be imposed 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." Evon v. Andrews, 211 Conn. 501, 511 (1989). Doe v. Peterson, 279 Conn. 607, 616 (2006), amplified this observation in footnote 8 where the court said of this exception "This exception has been interpreted to apply `not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims,' Burns v. Board of Education, 228 Conn. 640, 646 (1994). The whole theory of the plaintiff's case posits John Doe as the identifiable individual subject to imminent harm; lengthy discussion of whether he was in an "identifiable class of foreseeable victims," is not necessary. That analysis is more applicable to situations where a student slips or falls as a result of a dangerous condition, the dangerous condition exists, and liability is imposed in the appropriate case because even though the particular student injured was not ascertainable prior to the actual injury he was protected as a member of a foreseeable class of student who might be injured if the condition was not addressed. Burns v. Board of Education, supra; Durrant v. Board of Education, supra; Purzycki v. Fairfield, 244 Conn. 101 (1998).
In support of its motion summary judgment both sides submitted relevant exhibits. John Doe was deposed and portions of his deposition were offered into evidence by the plaintiff. He went to the library with Diaz often and said more than one-time hand-holding occurred. There were instances of hugging and kissing. Diaz was a woman in her late thirties and at the time of these incidents, the plaintiff was 14 or 15 years old. Such ongoing activities between Diaz and this youth certainly could raise the possibility that he was being subjected to inappropriate sexual contact and abuse. The problem, however, is that at his deposition the plaintiff said when he and Diaz were at the library "sometimes" other people were around. He did not relate this timewise to the alleged inappropriate conduct, nor did he identify who these people were — other members of the public or library employees. Also when asked if the library is in an open area he said "there's areas where you can basically be hidden from." But here too there was no indication he and Diaz were in these areas when the offensive activities occurred. The plaintiff's mother, Jane Doe was deposed. But she could not say what adequate security at the library would have been necessary and could not say whether the library staff knew of any inappropriate activity.
The problem with granting the motion for summary judgment on the foregoing basis is that what supports the Town's position does not show the absence of a material fact. In Gambardella v. Kaoud, 38 Conn.App. 355, 358 (1995), the court said: "It is not enough for the moving party to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts of substantial evidence outside the pleadings to show the absence of any material dispute." (Emphasis in original.) The burden is on the moving party to show the absence of any material fact, Plouffe v. NY, NY, and HR Co., 160 Conn. 482, 488 (1971), which quoted from Moore's Federal Practice. Moore was also quoted as saying: "To satisfy this 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 material fact." It is only then, once the moving party has presented evidence showing the absence of a material fact, that the non-moving party must come forward with evidence showing the existence of such a disputed factual issue, Daily v. New Britain Machine Co., 200 Conn. 562, 569 (1986).
No evidence has been presented here as to whether security was provided at the library or the nature of such security, the location of and number of library employees at the time the incidents in the library occurred, or whether the plaintiff in fact knew any people who he said were sometimes present to his knowledge, were library personnel. The mother's deposition testimony is of no help at all since her knowledge of what library employee's knew or did not know does not reflect what in fact these people were aware of at the times when inappropriate activity occurred in the library. The most egregious activity concerns the sexual assault of this youngster in this individual Diaz's vehicle in the library parking lot but the defendant Town has offered no information as to whether this lot area was or even could have been visible to library personnel or whether for example those employees were the same people who saw or might have seen the inappropriate activity occurring inside the library. In school cases one court has noted that adequate supervision levels might turn on actual or constructive notice of similar conduct since school authorities cannot be expected to guard against every act. Convey v. City of Rye School District, 710 N.Y.S.2d 641, 271 A.D.2d 154, 159 (2000). The same can be said of library responsibility where numbers of youngsters can be expected to congregate. But no evidence has been offered on this factor. The difficulty the Town was in is that it maintains that the library is not run by it, and it has limited responsibilities under the operative lease. Since the library employees it would need to take statements from or depose are not its employees the Town might have believed it would be unfair to require it to present evidence through them. Based on the foregoing, the court, however, is constrained to deny the Town's motion for summary judgment on the third count based on the assumption that it in fact operated the library and, as noted, has denied the motion but without prejudice as to this count based on the state of the pleadings as to the position that it did not in fact run the library which would have precluded liability in any event.