Opinion
No. FST CV-05-4004807
May 24, 2007
Memorandum of Decision
This action involves injuries allegedly suffered by the minor plaintiff, David Gaizler, on January 20, 2004, while he was a fifth grade student at Newfield Elementary School in Stamford. The minor plaintiff's father, Kenneth Gaizler, also sues to recover damages for sums expended on his son's care and treatment. The amended complaint, dated June 14, 2006, alleges that Lillian Pagani was the operator of an automobile owned by Aldo Pagani which struck the minor plaintiff while he was standing in a school driveway and acting as a student safety monitor. The plaintiffs claim to have recovered damages to the full extent of the Paganis' automobile liability insurance policy and have sued defendant, Unitrin Direct, under the underinsured motorists provisions of an insurance policy issued to plaintiff, Kenneth Gaizler.
The other defendants are the Board of Education of the City of Stamford (the "Board of Education"), the City of Stamford (the "City"), Anthony Mazzullo, Superintendent of Schools for Stamford ("Mazzullo"), and Edward Whelan, the principal of Newfield Elementary School ("Whalen"). The plaintiffs allege that Mazzullo and Whalen were negligent in a number of respects and that the Board of Education and the City are liable to the plaintiffs pursuant to General Statutes §§ 52-557n(a)(1)(A) and 7-465.
"(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 . . ."
That statute provides, in relevant part "(a) 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 . . . Governmental immunity shall not be a defense in any action brought under this section. . . . As used in this section, employee includes (1) a member of a town board of education and any teacher, including a student teacher doing practice teaching under the direction of such a teacher, or other person employed by such board . . ."
Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor."
The first count of the plaintiffs' amended complaint names the Board of Education as a defendant and alleges that the Board of Education was negligent: 1) in that the driveway/bus ramp on which the minor plaintiff was injured was not reasonably safe; 2) in that the crosswalk on the driveway/bus ramp was not adequately marked; 3) in that the driveway/bus ramp was not properly patrolled; 4) in that it failed to warn the minor plaintiff of the dangerous conditions on the driveway; 5) in that it permitted or encouraged students to use the driveway when it knew or should have known it was unsafe to do so; 6) in that it failed to properly train personnel to supervise student safety monitors; 7) in that it should have known of the above conditions and remedied that same, but failed to do so.
The second count directed against defendants Whelan and the Board of Education essentially repeats the allegations of the first count, but attributes the negligence to Whelan in his capacity as principal and seeks to hold the Board of Education responsible pursuant to the provisions of General Statutes § 52-557n(a)(1)(A).
The third count directed against defendants Mazzullo and the Board of Education essentially repeats the allegations of the first count, but attributes the negligence to Mazzullo in his capacity as Superintendent of Schools and seeks to hold the Board of Education responsible pursuant to the provisions of General Statutes § 52-557n(a)(1)(A).
The fourth and fifth counts allege the same acts of negligence by Whelan and Mazzullo, but seek to hold the City responsible under the provisions of General Statutes § 7-465. The sixth and seventh counts allege the same acts of negligence but attributes them directly to the City. In the sixth count the minor plaintiff seeks to recover damages, while in the seventh count the father seeks to recover for the out-of-pocket expenses incurred in the care and treatment of his son.
Presently at issue are a motion to strike and a motion for summary judgment filed by the defendants Board of Education, City, Whelan and Mazzullo.
I. MOTION TO STRIKE
The moving defendants seek to strike all counts of the amended complaint directed against them. "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court must] take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229 (2006). Practice Book § 10-41 requires that: "Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reasons or reasons for each such claimed insufficiency." (Emphasis supplied.). Unfortunately the moving defendants failed to separately and distinctly state the reasons for their motion to strike.
In their motion to strike, the moving defendants assert that:
CT Page 9087
A) the Board of Education cannot be liable for the actions of Whelan and/or Mazzullo under General Statutes § 52-557n since it is not a "political subdivision of the state."
B) any claims based on the defective condition of the driveway/bus ramp are barred by the exclusivity of the remedies provided for in General Statutes § 13a-1493 and under the exception set forth in General Statues § 52-557n(a)(1)(c).
". . . provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149."
C) any actions taken by Whelan and/or Mazzullo were discretionary in nature and consequently both those individuals and the Board of Education were entitled to governmental immunity. Moreover, the identifiable victim exception does not apply so as to expose either the Board of Education or the City to liability.
D) the City cannot be liable for the actions of Whelan and/or Mazzullo under General Statutes § 52-557n since they were not employees or agents of the City.
The moving defendants have failed to specify which counts of the amended complaint are implicated in each of its assertions of legal insufficiency, thus leaving to the court to shift through their arguments and match them with the allegations of the various counts of the amended complaint. The court has reluctantly done so.
A. Plaintiffs' Direct Claim against the Board of Education (First Count)
The first count purports to set forth a direct cause of action against the Board. In that count the plaintiffs fail to cite any statute which might abrogate the Board of Education's governmental immunity. Practice Book § 10-3 requires that: "When any claim is made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number."
The requirements of P.B. § 10-3 have been held to be directory rather than mandatory, particularly when, in the context of the case, the defendant is clearly apprised of the plaintiff's theory of liability. CT Page 9088 Spears v. Garcia, 263 Conn. 22, 26 (2003). In the context of this case, it is clear that the first count in founded on the assumption that General Statutes § 52-557n(a)(1) authorizes a direct claim against the Board of Education. It is also clear that the moving defendants are apprised of the plaintiffs' statutory claims. In their brief filed in support of their motion to strike, the moving defendants claim that General Statutes § 52-557n(a)(1) does not authorize a direct claim (presumably under the first count) against the Board of Education because it is not "a political subdivision of the state." It is apparent that this aspect of the motion to strike is directed against the first count.
The moving defendants do not cite any reported cases supporting their claim that the Board of Education, and similar boards of education, are not political subdivisions of the state. They assert that those cases which have applied General Statutes § 52-557n(a)(1) to boards of education have done so without analysis. As an example, the Board of Education cites Colon v. Board of Education, 60 Conn.App. 178, cert. denied, 255 Conn. 908 (2000), in which the Appellate Court overruled the trial court's decision to grant summary judgment in a case involving a claim against a board of education for injuries sustained by a student due to the alleged negligence of a teacher in opening a door. The Appellate Court determined that the trial court properly determined that the opening of the door was a discretionary rather than a ministerial act. Id., 181. However, the Appellate Court disagreed with the trial court's determination that the imminent harm exception to governmental immunity did not apply. Id., 187-88. The moving defendants in this case correctly point out that the Appellate Court did not directly hold that the Board of Education of the City of New Haven was a political subdivision of the state.
The moving defendants also argue that the "phrase political subdivision of the state" has not historically included boards of education. They claim that in common usage the phrase would include cities, towns and boroughs (and in bygone days, counties), but not boards of education. In their brief, the moving defendants do not provide a clear answer to the obvious question — "If Connecticut Boards of Education are not `political subdivisions of the state,' what are they?"
The moving defendants further argue that a careful reading of the usage of the phrase "political subdivision" as used in General Statutes § 7-381 suggests that "political subdivisions" include only those which have the power to levy taxes. The court finds the moving defendants' arguments to be unpersuasive.
Subsection (13) of General Statutes § 7-560 dealing with deficit financing defines "municipality" as "any town, city or borough, consolidated town and city, consolidated city and borough . . . and any other political subdivision of the state having the power to levy taxes and to issue bonds, notes or other obligations." This formulation suggests that the legislature contemplated the existence of political subdivisions of the state not possessing the taxing power.
In State ex rel. Maisano v. Mitchell, 255 Conn. 256 (1967) the court was called upon to determine whether the second taxing district of Norwalk was a "political subdivision of the state" within the meaning of General Statutes § 9-167a which provides for minority party representation on boards, commissions and committees. The court held:
The term "political subdivision" is broad and comprehensive and denotes any division of the state made by proper authorities thereof, acting within their constitutional powers, for the purpose of carrying out a portion of those functions of the State which by long usage and the inherent necessities of government have always been regarded as public. Id., 263.
The court in Maisano, supra, did not find the taxing power of the second taxing district of Norwalk relevant to its analysis of the issues before it.
The phrase "political subdivision of the state" is not defined in General Statutes § 52-557n. However, that phrase is used in numerous other provisions of the General Statutes. For example, General Statutes § 52-571b(f) — a statute prohibiting the burdening of exercise of religion, states that "political subdivision of the state" "includes any agency, board, commission, department, officer or employee of the state or any political subdivision of the state."
General Statutes § 12-217ff(a) which establishes a tax credit for "donations of land for educational purposes" defines that term as "the value of any land or interest in land conveyed without financial consideration, or the value of any discount of the sale price in any sale of land or interest in land, to any municipality or political subdivision of the state for educational use, as defined in section 16-43b." It is hard to believe that the legislature would enact a statute embracing a public policy favoring gifts of land for educational purposes, while not including gifts to boards of education within its scope.
General Statutes § 16-43b provides in relevant part "`educational use' means the use by any town, city or borough, whether consolidated or unconsolidated, and any school district or regional school district for the purposes of schools and related facilities." (Emphasis added.)
General Statutes § 7-479(a) which authorizes municipal risk management pools, defines "Local public agency" as "any political subdivision of the state, including any city, town or borough or any district as defined in section 7-324 or any metropolitan district or any municipal district created under section 7-330, or other district, district department of health, school board, housing authority or other authority established by law." That definition evidences the legislature's understanding that "political subdivisions of the state" include school boards. See also the similarly worded definition of "Municipal employer" in General Statutes § 7-467.
Finally, the court considers whether the interpretation of General Statutes § 52-557n urged by the defendant Board of Education is consistent with the public policy evident in that statute. The obvious purpose of the statute was to provide relief to persons injured by the negligence of public employees who otherwise would go uncompensated. The defendant Board of Education does not attempt to explain how leaving the victims of the negligence of school board employees without an effective remedy furthers that public policy or otherwise is consistent with any rational legislative goals.
Having considered the defendant Board of Education's arguments, the court concludes that the Appellate Court in Colon v. Board of Education, supra, did not improperly assume the applicability of General Statutes § 52-557n to school board employees, but rather considered the application of the statute to be so obvious as to be unworthy of comment.
The moving defendant's motion to strike the direct claims against the defendant Board of Education under General Statutes § 52-557n (as set forth in the first count) is denied.
B. Applicability and Exclusivity of General Statutes § 13a-149, the Highway Defect Statute
In their brief in support of their motion to strike, the moving defendants incorporate by reference the arguments concerning General Statutes § 13a-149 set forth in the brief filed in support of their motion for summary judgment. In that brief the moving defendants assert that, with respect to claims based on the defective condition of the driveway/bus ramp, the plaintiffs are limited to a claim under General Statutes § 13a-149 and have failed to properly allege the prerequisites to liability under that statute. Such claims are found in each of the seven counts directed against the moving defendants.
In considering the arguments of the moving defendants, the court must initially determine whether, as a matter of law, the highway defect statute, General Statutes § 13a-149, is applicable to a driveway or bus ramp on the grounds of a public school. The moving defendants rely on the holding of the Appellate Court in Novicki v. New Haven, 47 Conn.App. 734 (1995). In that case, the Appellate Court considered whether an injured plaintiff could sustain a claim under General Statutes § 13a-149 against the City of New Haven for alleged defects on a walkway on public school grounds. Id., 735. The court upheld the trial court's decision to grant the City's motion to dismiss the action. Since the trial court did not state in its opinion whether the dismissal was based on the inapplicability of the statute or on the absence of a duty to maintain it, the court considered both possibilities. Id., 740. The court first found the statute applicable stating:
Since the walkway on which the plaintiff was injured was on public property and led from a city street to a public school, it was reasonably anticipated that the public would make use of it. Accordingly, we conclude that the walkway is a road or bridge for purposes of the highway defect statute . . . Id., 740.
However, in Novicki, the court sustained the dismissal when the evidence demonstrated that the Board of Education, rather than the City had the duty to repair and maintain the walkway. Id., 742-43.
In their opposition to the motion for summary judgment and the motion to strike, the plaintiffs do not dispute that the highway defect statute would apply to defects in driveways and crosswalks on school grounds. However, the plaintiffs claim that their action is based on negligence or carelessness of the moving defendants for their actions or inactions, not on any highway defect. This argument ignores the allegations of the plaintiffs' amended complaint as well as the broad scope of governmental immunity at common law and the narrowness of the statutory exceptions to that immunity. It is clear that the state or a municipality may not be sued unless the legislature has enacted statutes waiving sovereign immunity for the prescribed circumstances giving rise to the plaintiff's claim. Baker v. Ives, 162 Conn. 295, 298 (1972).
The court agrees with the moving defendants that the driveway/bus ramp on the grounds of the Newfield Elementary School is a public highway within the meaning of General Statutes § 13a-149.
To the extent that the plaintiffs claim that the driveway, bus ramp or crosswalk were defective they could have brought a claim against either the City or the Board of Education or both under General Statutes § 13a-149. Since no count of the amended complaint alleges that the plaintiffs provided the notice required under General Statutes § 13a-149, the court concludes that the plaintiffs are not alleging a cause of action under the highway defect statute against any defendant.
Practice Book § 9-14 provides: "Persons may be joined as defendants against whom the right to relief is alleged to exist in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other."
The court agrees with the moving defendants that under the circumstances of this case, the failure of the plaintiffs to assert claims under the highway defect statute precludes them from asserting claims of negligence against the moving defendants based upon any negligence associated with the layout, design or maintenance of the driveway, bus ramp or crosswalk. Those claims of negligence are set forth in each of the plaintiffs' first six counts.
However, each of those counts contain additional allegations of negligence unrelated to those covered by the highway defect statute. "If a [single] count sets forth more than one cause of action, a [motion to strike) addressed to the entire count fails if it does not reach all the causes of action pleaded." Cammarota v. Cammerota, CV 06-50029355 (September 26, 2006, Hiller, J.) citing Wachtel v. Rosol, 159 Conn. 496, 499 (1970). The court must therefore determine whether the motion to strike reaches each of the allegations of negligence pleaded in the first through six counts of the complaint before it can rule on the motion to strike.
C. Discretionary Functions
The moving defendants claim that the allegations of negligence against Mazzullo and Whelan relate to discretionary functions for which they are entitled to governmental immunity. Allegations concerning the acts or omissions of Mazzullo and Whelan are found in the Second, Third, Fourth and Fifth counts of the plaintiff's amended complaint. The question of whether the duties of a public employee are discretionary or ministerial is a question of law. "[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107-08 (1988).
1. Claims Relating to Defendant Mazzullo CT Page 9093
The fifth paragraph of the amended complaint (incorporated by reference into all counts directed against the moving defendants) alleges that Mazzullo, as superintendent of schools, was "responsible for the promulgation of such rules and regulations as are necessary for the use of school facilities and the adequate staffing, supervision and maintenance of said facilities." The thirteenth paragraph of the third count, directed against Mazzullo and the Board of Education alleges that Mazzullo was negligent seven different ways. The first five allegations of negligence (subparagraphs a. through e.) relate to the driveway/bus ramp and, as discussed above, fall within the scope of General Statutes § 13a-149. The sixth and seventh allegations of negligence (subparagraphs f. and g.) are that Mazzullo "failed to provide and train sufficient personnel, including Nelli Savastsy, to supervise the student safety monitors, including the plaintiff, David Gaizler, and to monitor the condition of the premises of Newfield Elementary School," and "in that in the exercise of reasonable care and inspection, he should have known of the aforementioned condition and should have remedied the same, yet this he failed to do."These last two allegations of the thirteenth paragraph are obscure. The amended complaint does not identify Nelli Savastsy or explain her relationship to Newfield Elementary School or any of the defendants. Presumably that individual was an employee or a volunteer charged with responsibilities involving student safety monitors. The "aforementioned condition," in subparagraph g., does not clearly refer to any particular allegations which preceded it. However, the only "conditions" (as opposed to actions or omissions) are those relating to the driveway/bus ramp and therefore within the scope of the highway defect statute, General Statutes § 13a-149.
The allegations of the fifth count mirror those of the third count adding only the allegation that the City is liable to plaintiffs under the provisions of General Statutes § 7-465.
2. Claims Relating to Defendant Whelan
The second and fourth counts allege the negligence of Whelan as Principal of Newfield Elementary School and the responsibility of the Board of Education and City respectively for that negligence. The only allegations of Whelan's negligence are those set forth in the twelfth paragraph of the second and fourth counts. Those allegations are identical to those of the thirteenth paragraph of the third and fifth counts (alleged with respect to the conduct of Mazzullo) and include the allegations of failure to train personnel (including the mysterious, Nelli Savastsy) and the failure to remedy "the aforementioned condition."
3. Discussion
The relevant duties of the defendants, other than those related to highway defects, are pleaded in the fifth paragraph of the third and fifth counts as to Mazzullo and in subparagraph f. of the thirteenth paragraph of the third and fifth counts (as to Mazzullo) and in subparagraph f. of the twelfth paragraph of the second and fourth counts (as to Whelan). These duties are not alleged to be (nor do they appear to be) ministerial duties to which immunity would not apply. Causes of action based on the performance of discretionary duties can only be maintained if the allegations of the complaint are sufficient to establish the applicability of one of the three exceptions to the broad rule of governmental immunity pertaining to such acts. Bailey v. West Hartford, 100 Conn.App. 805, 811 (2007). In Bailey, the court identified the three exceptions as: 1) "malice, wantonness or intent to injure;" 2) "when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws;" and 3) "when circumstances make it apparent to the public official that his or her failure to act would be likely to subject an identifiable person to imminent harm." Id., 811.
In this case the only potentially available exception is the third one, also known as the "identifiable victim" or "identifiable victim-imminent harm" exception. The applicability of that exception was recently summarized by the Supreme Court: "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. Petersen, 279 Conn. 607, 616 (2006).
In Doe, supra, the Supreme Court analyzed the "apparentness" aspect of the three-prong test:
The "apparentness" requirement is grounded in the policy goal underlying all discretionary act immunity, that is, "keeping public officials unafraid" to exercise judgment. G. Bermann, "Integrating Governmental and Officer Tort Liability," 77 Colum. L. Rev. 1175, 1180 (1977). It surely would ill serve this goal to expose a public official to liability for his or her failure to respond adequately to a harm that was not apparent to him or her. 279 Conn. at 616-17.
The court went on to discuss the analysis required when the exception to immunity for discretionary acts is at issue:
First . . . the core requirements to the "imminent harm" exception are analyzed conjunctively. To prevail the plaintiff must demonstrate that she was an identifiable person and was subject to imminent harm and that the public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to her. Demonstration of less than all of these criteria is insufficient . . .
Second, the criteria of "identifiable person" and "imminent harm" must be evaluated with reference to each offer. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person . . . For purposes of the "imminent harm" exception . . . it is impossible to be an identifiable person in the absence of any corresponding imminent harm. Id. at 620-21.
Previously, in Purzycki v. Fairfield, supra, the Supreme Court considered the imminent harm exception as it related to the immunity claimed by a school principal for injuries suffered by a student after being tripped by a fellow student in an elementary school hallway during an unsupervised lunch recess. Id., 103. The Supreme Court held that the trial court had abused its discretion by setting aside a plaintiff's verdict on the basis that the evidence had not demonstrated that the plaintiff was a member of an identifiable class of persons that was subject to imminent harm from a foreseeably dangerous condition that was limited in duration and geographical scope. Id., 110 The court noted that in Burns v. Board of Education, supra, 228 Conn. 640, 649 (1994), it had held that school children who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims. Id., 109. The court found that from the evidence the jury could have reasonably concluded that the plaintiff was subjected to imminent harm during the half-hour lunch period when the students were unsupervised in the school hallways. Id., 110.
Paragraphs 8. and 9. of the amended complaint alleges that at the time of the accident, "plaintiff, David Gaizler, was acting in his capacity as a student safety monitor in the driveway/bus ramp leading to the front of the Newfield Elementary School," and "[a]s a student safety monitor, the plaintiff, David Gaizler, was to assist other students, staff and members of the public to safely cross the driveway/bus ramp when school was discharged for the day."
The court finds that these allegations are sufficient to satisfy the "imminent harm," "identifiable victim" and "apparentness" prongs of the test articulated in Doe, supra. In this case the allegations of the amended complaint allege that plaintiff, David Gaizler, as a school safety monitor, belonged to an even narrower class of identifiable victims than in Burns, supra. The allegations of the amended complaint suggest that David Gaizler was assigned duties on or in the immediate vicinity of the driveway/bus ramp which obviously exposed him to imminent harm from the vehicles traveling on the driveway/bus ramp. These allegations are sufficient to raise the inference that student safety monitors assigned to duties in such an area might be exposed to harm which ought to have been apparent to Mazzullo and/or Whelan. Such a reasonable inference satisfies the "apparentness" prong of the "imminent harm-identifiable victim" exception.
Accordingly, the motion to strike counts of claims against the defendants based on the alleged exercise of discretionary functions is denied.
D. Defendant City's Liability under General Statutes § 52-557n
The moving defendants assert that direct claims against the City based on the alleged misconduct of Mazzullo and Whelan must be stricken. This aspect of the motion to strike is apparently directed to the sixth count which alleges the City's negligence, but fails to identify the employees or officials of the City who were guilty of such negligence. The court finds this claim to be without merit.
The sixth count contains no reference to either Mazzullo or Whelan and does not allege that the City's liability under that count is founded on General Statutes § 52-557n. In ruling on a motion to strike, a trial court is limited to a consideration of the facts alleged in the complaint. A speaking motion to strike, that is, one imparting facts outside of the complaint, must be denied. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).
The moving defendants might have requested the plaintiffs to revise their sixth count, pursuant to P.B. § 10-35, to identify the individuals, acting on behalf of the City, who allegedly committed the negligent acts and omissions. However, they did not do so. For that reason, the court is not in a position to determine, in considering the motion strike, whether the allegations of the sixth count state a legally sufficient claim. Accordingly, the motion to strike the sixth count must be and is denied.
II. MOTION FOR SUMMARY JUDGMENT
In anticipation of the possibility that the court might not strike all counts of the plaintiffs' amended complaint, the moving defendants have also filed a motion for summary judgment in their favor with respect to all counts of the amended complaint directed against them.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . ." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005).
"In deciding a motion for summary judgment, the trial court must review the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . . The test is whether a party would be entitled to a directed verdict on the same facts . . ." Bartlett v. Heise, 84 Conn.App. 424, 428, 853 A.2d 612 (2004).
In their motion for summary judgment the moving defendants assert that they are entitled to summary judgment in three respects. First, they argue that claims falling within the highway defect statute can only be asserted pursuant to the provisions of that statute. Second, the plaintiffs have not alleged a legally sufficient highway defect claim. Third, the defendant City has no direct liability for conditions on school grounds or the conduct of school personnel.
Attached to the motion are affidavits from Valerie Pankosky, administrative assistant to the Stamford Board of Representatives and from Dennis Murphy, the Director of Human Resources of the City of Stamford. In her affidavit, Pankosky authenticates extracts from the City charter covering the duties of the City's Director of Operations and the functions of the Department of Public Works. In his affidavit, Murphy states that school personnel are not employees of the City of Stamford.
The first two claims of the moving defendants are not different from the assertions made in their motion to strike the aspects of the amended complaint involving claims falling under the highway defect statute. The court agrees with the moving defendants both that the highway defect statute is an exclusive remedy for conditions within its scope, and that the plaintiffs have failed to adequately allege a cause of action under the highway defect statute. However, the court does not find that the moving defendants are thereby entitled to summary judgment on any of the counts of the plaintiffs' amended complaint.
In the brief submitted in support of their motion for summary judgment, the moving defendants have failed to supply any authority supporting their apparent position that a court, considering a motion for summary judgment under P.B. § 17-44 et seq., may grant the motion as to some, but not all of the allegations of a count. Practice Book § 10-35(3) contemplates that a party wishing to have an adversary separate causes of action improperly combined in a single count will file a request to revise. This the moving defendants failed to do. The court does not believe that the plaintiffs have pled or can plead a viable cause of action under the highway defect statute. Nevertheless, the court finds that it is not proper to use a motion for summary judgment to edit out those portions of otherwise viable counts which allege legally insufficient claims.
The third claim raised in the moving defendants' motion for summary judgment involves the sixth count in which the plaintiffs claim that the City has liability for its own negligence. The acts of negligence alleged are identical to those attributed to the Board of Education in the first count, to Whelan in the second and fourth counts, and to Mazzullo in the third and fifth counts. The affidavits attached to the motion for summary judgment establish that the City had no obligation under its charter to maintain school grounds and that school personnel were not City employees.
In their memorandum filed in opposition to the motion for summary judgment, the plaintiffs claim that the City is responsible for the actions of Whelan and Mazzullo pursuant to General Statutes § 7-465. However, the sixth count does not allege that the City's liability is founded on that statute. Both the fourth and fifth counts already contain causes of action against the City based on the alleged negligence of Whelan and Mazzullo respectively. In each of those counts the plaintiff plead the applicability of General Statutes § 7-465. It appears that the plaintiffs believe that the sixth count can be preserved as a separate cause of action even if it is entirely duplicative of other counts. The court disagrees.
It is apparent to the court that the sixth count is, of necessity, based on a non-statutory theory of liability. The court finds the rationale of Spears v. Garcia, supra, inapplicable in this instance. When the plaintiffs have already asserted causes of action against the City under General Statutes § 7-465 based on the conduct of Mazzullo and Whelan, it cannot be said that the City is clearly apprised that a second count failing to specify any statute is being brought under the authority of the same statute.
After considering the moving defendants' affidavits and the absence of relevant responsive materials submitted by the plaintiffs, the court concludes that the City is entitled to summary judgment on the sixth count of the plaintiffs' amended complaint. In all other respects, the motion for summary judgment is denied.