Summary
In Greene v. Cheshire Academy, 2004 WL 2441881 (Conn.Super.Ct., Oct. 1, 2004), an action was brought by a minor student against a private boarding school for injuries allegedly sustained by him in a student dormitory, where he was the victim of a battery committed by a fellow student.
Summary of this case from Doe v. TalabiOpinion
No. CV02 0279414-S
October 1, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #113
The plaintiff, Benjamin Greene, filed a complaint on January 1, 2002, alleging in a single count that the defendant, The Cheshire Academy, is liable for damages he sustained in a student dormitory as a result of an assault and battery committed by Samuel Raper. The plaintiff alleges that the defendant did not reasonably supervise its students, including Raper, and that this negligent supervision was the proximate cause of the assault and battery.
Before the court is the defendant's motion for summary judgment.
The court notes, after a review of the file and the Web Edison Case Info 1 and 2 Screens, that although this case has been assigned a jury selection date in December 2004 and that this motion for summary judgment was filed with permission of the court by agreement of the parties at a pre-trial, neither an answer nor a certificate of closed pleadings has been filed.
Practice Book § 17-49 provides "[summary] judgment sought 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 party moving for summary judgment is required to support its motion with supporting documentation, including affidavits. Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Summary judgment is particularly "ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
The defendant argues that there is no genuine issue of material fact because the alleged criminal conduct of Raper was not within the scope of risk created by the defendant's alleged negligence and was not foreseeable. The defendant further asserts that because it did not cause the plaintiff to be physically assaulted by another student, because the plaintiff voluntarily went into another student's dorm room after lights out, and because the alleged events were not foreseeable, the defendant cannot be held liable as a matter of law.
The issues presented by this case are: 1) whether the defendant had a duty to the plaintiff and if so what was the nature of that duty; 2) whether that duty was breached; 3) whether that breach was the legal and proximate cause of injury to the plaintiff; and 4) whether the plaintiff was actually injured by the breach.
Since the present case involves a private boarding school, the line of negligence cases brought against public schools wherein the "identifiable person-imminent harm exception to governmental immunity" is at issue; Colon v. Board of Education, 60 Conn.App. 178, 758 A.2d 900 (2000); Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998); is not completely analogous, although it is instructive. See, Colon v. Board of Education, supra.
More on point are Connecticut superior court cases involving private schools. In those cases the issue of duty and nature of duty turns on the foreseeability of the type of harm to the plaintiff. "[T]he question is whether there is any factual dispute over whether harm of the sort sustained by the plaintiff was reasonably foreseeable by the defendant in the exercise of due care." Doe v. X Corp., Superior Court, judicial district of New Haven, Docket No. CV 93 0351397 (January 30, 1997, Silbert, J.).
The defendant in its memorandum asserts there is no evidence of any prior similar conduct by Raper or by any other student. These assertions, however, are not contained in a sworn affidavit or certified deposition testimony. The defendant has attached uncertified deposition testimony of the plaintiff to its memorandum of law in support of its motion. "`Reliance on deposition testimony on a motion for summary judgment is generally inappropriate.' Funaro v. Mount Mansfield Co., Superior Court, judicial district of New Haven, Docket No. 318105 (July 15, 1994, Martin, J.) 12 Conn. L. Rptr. 117, 118. `Uncertified deposition transcripts are not acceptable in support of, or in opposition to, a motion for summary judgment . . .' (Citations omitted; internal quotation marks omitted.) State Street Mortgage Co. v. Piscitelli, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 043399 (February 22, 1996, Curran, J.)'" Doe v. X Corp., Superior Court, supra. In a case where only one party offers uncertified deposition excerpts in support of its motion for summary judgment, this court has declined to consider the excerpts; National Collectors v. Tierney, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0277857 (January 20, 2004, Tanzer, J.). In any event, the submitted excerpts of the plaintiff's deposition testimony shed no light on this issue of the defendant's knowledge.
The defendant also argues that the assault and battery was an intervening criminal act that broke the chain of causation. Section 315 of the Restatement (Second) provides in relevant part: "There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct . . ." 2 Restatement (Second), supra, § 315(a). Murdock v. Croughwell, 268 Conn. 559, 848 A.2d 363 (2004). "Although the Restatement does not define such special relationships they do include ones in which a person is in charge of or the custodian of another . . . Such a special relationship has been held to include one in which a person accepts responsibility for supervision of a minor child and knew or should of known of the child's dangerous tendencies." (Citation omitted; internal quotation marks omitted.) Hurlburt v. Baldyga, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 02 0079846 (May 4, 2004, Scholl, J.) ( 36 Conn. L. Rptr. 908). "If the conduct of a negligent actor creates the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct." (Internal quotation marks omitted.) Bohan v. Last, 236 Conn. 670, 679, 674 A.2d 839 (1996).
In the present case, there is a special relationship between a private boarding school and its students inasmuch as a boarding school exercises a form of custody or control over its students. For this reason the general rule of non-liability for the acts of third parties does not automatically relieve the defendant of liability.
There are genuine issues of material fact as to whether the defendant knew or should have known about the dangerous tendencies of Raper and whether the harm caused by his conduct was within the scope of risk created by the defendant's conduct.
The defendant's motion for summary judgment is denied.
BY THE COURT
Tanzer, Judge