Opinion
No. CV07 5011011
March 3, 2008
MEMORANDUM OF DECISION
FACTS AND PROCEDURAL HISTORY
The plaintiff, Linda LeBlanc, filed an amended eight-count complaint on August 22, 2007. The complaint alleges the following facts. On June 10, 2005, the plaintiff was on the premises of Thomas Alcorn Elementary School in Enfield, having been invited to attend a school function with her grandchildren who were students at the school. The plaintiff tripped and fell on a crack in the sidewalk leading to the side entrance of the school and consequently, suffered various injuries.
The plaintiff alleges that her injuries were the result of the defendants' negligence in failing to maintain the sidewalk in a safe condition. Counts one and two are brought pursuant to General Statutes § 52-557n against the town of Enfield and the Enfield public schools and board of education (municipal defendants), respectively. Counts three through seven allege negligence on the part of various individual employees. Count eight seeks indemnity from the public schools and board of education pursuant to General Statutes § 10-235.
General Statutes § 52-557n(a)(1) provides in relevant part: "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 . . ."
The individual defendants are: Sharon A. Racine, chairman of the board of education; John Gallacher, superintendent of schools; Bonnie Mazzoli, principal of the elementary school; David Tuttle, supervisor of the town's building and grounds maintenance division; and William Sperrazza, superintendent of highway maintenance.
General Statutes § 10-235(a) provides in relevant part: "Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff and the State Board of Education, the Board of Governors of Higher Education, the board of trustees of each state institution and each state agency which employs any teacher, and the managing board of any public school, as defined in section 10-183b, including the governing council of any charter school, shall protect and save harmless any member of such boards, or any teacher or other employee thereof or any member of its supervisory or administrative staff employed by it, from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death of any person, or in accidental damage to or destruction of property, within or without the school building, or any other acts, including but not limited to infringement of any person's civil rights, resulting in any injury, which acts are not wanton, reckless or malicious, provided such teacher, member or employee, at the time of the acts resulting in such injury, damage or destruction, was acting in the discharge of his or her duties or within the scope of employment or under the direction of such board of education, the Board of Governors of Higher Education, board of trustees, state agency, department or managing board . . ."
On September 6, 2007, the defendants filed a motion to strike all eight counts of the complaint. They move to strike counts one through seven on the grounds that the claims against the individual employees and the municipal defendants are barred by qualified and governmental immunity, respectively. The defendants move to strike count eight on the ground that § 10-235 does not provide for a direct action against boards of education by nonemployees. The defendants submitted a memorandum of law in support of their motion. On October 10, 2007, the plaintiff filed a memorandum of law in opposition. The court heard oral argument on December 3, 2007.
DISCUSSION CT Page 3231
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1289 (2006). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "[The court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "(W]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) DeConti v. McGlone, 88 Conn.App. 270, 272, 869 A.2d 271, cert. denied, 273 Conn. 940, 869 A.2d 271 (2005).In support of their motion, the defendants argue that the claims against the individual employees are barred by qualified immunity because maintenance of the sidewalk in question was a discretionary, and not a ministerial, act. They further maintain that the identifiable victim, imminent harm exception to qualified immunity does not apply here as the plaintiff was not an identifiable victim nor did she suffer imminent harm. The defendants maintain that the claims against the municipal defendants are similarly barred by governmental immunity. Finally, the defendants argue that the plaintiff may not bring a claim against the board of education pursuant to General Statutes § 10-235 because she is not an employee of the board of education. The plaintiff counters that the acts alleged were ministerial duties, and so qualified and governmental immunity do not shield the defendants from liability. Further, the plaintiff argues, even if the acts in question were discretionary, an exception to qualified and governmental immunity applies as the plaintiff was an identifiable victim subject to imminent harm by virtue of the fact that she was invited to attend a function at the school on the day she sustained her injury. As to her claim under § 10-235, the plaintiff contends that an injured individual may bring a direct cause of action pursuant to the Section as long as the complaint names individual employees as defendants. Since the plaintiff has named individual employees here, she maintains she has stated a valid claim under the statute.
1. Qualified Immunity
"A municipality itself was generally immune from liability for its tortious acts at common law but its employees faced the same personal tort liability as private individuals . . . [The Supreme Court] first adopted a version of qualified official immunity in 1920 in Wadsworth v. Middletown, 94 Conn. 435, 439, 109 A. 246 (1920), where [the court] said that since certain public officials were `engaged upon a governmental duty . . . so long as they act in good faith, in the exercise of an honest judgment, and not in the abuse of their discretion, or maliciously or wantonly, they cannot be held liable.' Thus, an exception to liability was carved out for discretionary acts, as long as they were not performed maliciously, wantonly or in an abuse of discretion." (Citation omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165-66, 544 A.2d 1185 (1988).
"[A public officer] . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint." (Citations omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). See e.g. Pluhowsky v. New Haven, 151 Conn. 337, 347, 197 A.2d 645 (1964) (an example of a ministerial act includes a town clerk's duty to record an instrument in the town's land records).
In Evon v. Andrews, 211 Conn. 501, 502, 559 A.2d 1131 (1989), the plaintiffs brought an action against the defendant municipality and various individual municipal employees alleging negligence in the defendants' failure adequately to inspect a multi-family rental unit pursuant to city codes and regulations. The Supreme Court found that the defendants' actions were discretionary since "what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment . . . [N]o matter how objective the standard an inspector's decision as to whether a building falls below a standard and whether remedial orders are therefore required involves the exercise of his or her judgment." Id., 506. In Segreto v. Bristol, 71 Conn.App. 844, 845, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002), the plaintiff fell on a stairway in a senior center owned and operated by the defendant city. The plaintiff argued on appeal that the trial court had improperly found that the defendant's failure to maintain the stairs in a safe manner constituted a discretionary duty. Id., 849. The Appellate Court disagreed, holding that the defendant's actions were discretionary as a matter of law because "[d]eterminations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment and are, therefore, discretionary in nature." Id., 857.
In the present case, the plaintiff alleges that the defendants failed in their duty to maintain the sidewalk leading to the school in a safe condition. Like the defendants in Evon and Segreto, the defendants here had to exercise judgment in determining whether the sidewalk required repair. As such, as a matter of law, this duty was discretionary in nature, and not ministerial.
Given this court's finding that the defendants' actions here were discretionary, the plaintiff may recover only if an exception to qualified immunity applies. The Supreme Court has recognized three exceptions to qualified immunity for municipal employees: "first, where 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 . . . second, where a statute specifically provides for a cause of action against a . . . municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted.) Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). The plaintiff argues that the first exception applies: that she was an identifiable victim subject to imminent harm.
"The Supreme Court has construed this exception to apply "not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 108, 708 A.2d 937 (1998).
"[T]he question of whether a particular plaintiff comes within a cognizable class of foreseeable victims for the purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care." Durrant v. Board of Education, 284 Conn. 91, 100-01, 931 A.2d 859 (2007).
In Burns v. Board of Education, supra, 228 Conn. 642, the plaintiff, a high school student, brought a claim sounding in negligence against various defendants, including individual municipal employees, as a result of injuries he suffered when he slipped on a sheet of ice on the schoolyard. Against the asserted defense of qualified immunity, the plaintiff argued he was a member of a foreseeable class of victims, and thus an exception to immunity applied. Id., 646. The Supreme Court noted that in defining the foreseeable class of victims exception, courts had considered various criteria, "including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim." Id., 647. As to the particular facts and circumstances of the case, the court stated that "statutory and constitutional mandates demonstrate that school children attending public schools during school hours are intended to be the beneficiaries of certain duties of care." Id., 648. Noting as well that a school child's presence at school is mandated by statute, and thus not voluntary, the court found that the plaintiff was a member of a class of foreseeable victims. Id., 649-50.
Our courts, however, have thus far refused to extend this exception to individuals other than school children. In Prescott v. Meriden, 273 Conn. 759, 760-61, 873 A.2d 175 (2005), the court considered the issue of whether a parent attending his child's public school sporting event was a member of an identifiable class of foreseeable victims. The plaintiff parent sustained serious injuries when he slipped and fell on bleachers set up for viewing his son's high school football game. Id., 762. The court stated that "[t]hus far, the only identifiable class of foreseeable victims that we have recognized . . . is that of schoolchildren attending public schools during school hours." Id., 764. The court held that the plaintiff was not a member of a foreseeable class of victims. Id. In so doing, the court found that the plaintiff's presence at the game was voluntary; the plaintiff was not entitled to special consideration of care from school officials due to his status as a parent. Id., 764-65. Since the plaintiff was similarly situated to members of the general public as a whole, to find him a foreseeable victim would "[make] the exception so broad that it would threaten to swallow the rule." Id., 765.
In its recent decision of Durrant v. Board of Education, 284 Conn. 91, 931 A.2d 859 (2007), the Supreme Court again considered the identifiable class of victims exception to governmental immunity. The plaintiff in Durrant slipped and fell on a puddle of water on a set of stairs at a public middle school. Id., 96. The plaintiff's presence at the school was due to the fact that her son was a participant in an after-school daycare program conducted by the school board pursuant to General Statutes § 17b-737, which allowed grants to municipalities and boards of education to encourage the use of school facilities for after school child care services. Id., 94.
The plaintiff claimed that she was a member of an identifiable class of foreseeable victims under this set of circumstances. Id., 100. The court disagreed, stating: "the plaintiff was not compelled statutorily to relinquish protective custody of her child. No statute or legal doctrine required the plaintiff to enroll her child in the after school program; nor did any law require her to allow her child to remain after school on that particular day . . . The plaintiff's actions were entirely voluntary, and none of her voluntary choices imposes an additional duty of care on the school authorities pursuant to the Burns [v. Board of Education, supra, 228 Conn. 640] standards." CT Page 3235 Id., 108. The court acknowledged that § 17b-737 "condone[s] and even encourage[s] the use of public school facilities for the very purpose for which the plaintiff's child was in attendance at the school on the day of the plaintiff's fall." Id. The court concluded that "[t]here is a significant distinction, however, between a program in which participation is encouraged and one in which it is compelled." (Emphasis in original.) Id., 109.
Our Supreme Court has clearly limited the class of foreseeable victims who can assert an exception to qualified immunity. Given the limitations articulated in Prescott and Durrant, the plaintiffs claim to be a member of an identifiable class of foreseeable victims is unconvincing. Unlike the plaintiff in Burns, the plaintiff's presence at the Thomas Alcorn Elementary School was not compelled by statute. Since the plaintiff has not alleged any facts to suggest her presence on school grounds was involuntary, she cannot invoke the exception to qualified immunity.
Since the acts of the defendant individual municipal employees here were discretionary, and because the plaintiff was not a member of a class of foreseeable victims, the plaintiff's claims against the individual employee defendants are barred by qualified immunity. Accordingly, the court grants the defendants' motion to strike as to counts three through seven.
2. Governmental Immunity
"[A] municipality itself was generally immune from liability for its tortious acts at common law . . . We have also recognized, however, that governmental immunity may be abrogated by statute . . . Thus, the general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). Pursuant to General Statutes § 52-557n(a)(1)(A), a municipality, or political subdivision, is liable for 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 . . ." This section permits plaintiffs to bring direct actions for negligence against municipalities, as the language of the statute "clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents." Spears v. Garcia, supra, 263 Conn. 29.
Although the legislature has abrogated the broad immunity enjoyed by municipalities at common law, municipalities remain immune 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). As previously discussed, the acts in question were discretionary and since no exception to governmental immunity applies, this court finds that the municipal entities are immune from liability. The court therefore grants the defendants' motion to strike counts one and two.
3. Indemnity Pursuant to General Statutes § 10-235
General Statutes § 10-235(a) provides in relevant part: "Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof . . . from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence . . ." Our Appellate Court has stated that the section is "an indemnification statute contingent on a judgment's being obtained against a board member, teacher, employee or any member of the board's supervisory or administrative staff." Burns v. Board of Education, 30 Conn.App. 594, 602, 621 A.2d 1350 (1993), rev'd on other grounds, 228 Conn. 640, 638 A.2d 1 (1994). The court in Burns further noted that "[s]ince the plaintiffs have alleged that the basis for their claim is the superintendent's negligence, if that fails, so do the derivative claims that are based on it." Id.
Since the plaintiff's underlying claims against both the individual and the municipal defendants are barred by governmental immunity, her claim under § 10-235, due to its derivative nature, must fail as well. The court grants the defendants' motion to strike count eight.
It is so ORDERED.