Opinion
KNLCV156023934S
10-13-2017
Megan Marvin PPA Carol Marvin v. Colchester Board of Education
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#125)
Leeland J. Cole-Chu, J.
The minor plaintiff, Megan Marvin, through her mother and next friend, Carol Marvin, brings this action by her complaint dated April 21, 2015, against the defendant Colchester Board of Education for negligence pursuant to General Statutes § 52-557n(a)(1)(A). The defendant is a political subdivision of the state. See General Statutes § 10-220(a). The complaint alleges that the plaintiff was a high school student at Bacon Academy, Colchester's high school (the school); that, as a member of the school's softball team, she was required to attend softball practice during school hours; and that, on May 7, 2013, the plaintiff was using the women's locker room at the school (the locker room) when she slipped on a puddle of water, fell, and was injured.
On May 1, 2017, the plaintiff withdrew a second count for nuisance under General Statutes § 52-557n(a)(1)(C).
The defendant asserted the special defense (#105) that the plaintiff's claim is barred by governmental immunity, specifically pursuant to General Statutes § 52-557n(a)(2)(B). On January 25, 2017, the defendant moved for summary judgment on that ground. On April 17, 2017, the plaintiff filed an opposing brief (#129) and, on May 1, 2017, the motion for summary judgment was argued and submitted. The court apologizes for the delay in this ruling.
DISCUSSION
Summary judgment is appropriate if the pleadings, affidavits and other proper evidence 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. See Practice Book § 17-49; Patel v. Flexo Converters, U.S.A., Inc., 309 Conn. 52, 56, 68 A.3d 1162 (2013). " The party seeking summary judgment has the burden of showing the nonexistence of any genuine issue of material fact." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). Once the movant has met that burden, however, the opposing party may defeat the motion only be presenting evidence that reveals a material factual dispute. Id., 11. Statements that are mere conclusions are not considered evidence. See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
The plaintiff and the defendant both rely on General Statutes § 52-557n(a). § 52-557n(a) has two important provisions pertinent to the present analysis. The plaintiff relies on subsection one of § 52-557n(a), which abrogates local governmental immunity for damages " 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." General Statutes § 52-557n(a)(1)(A). The defendant relies on subsection two of § 52-557n(a), which provides in relevant part that " a political subdivision of the state shall not be liable for damages to person or property caused by . . . 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); see Martel v. Metropolitan District Commission, 275 Conn. 38, 58, 881 A.2d 194 (2005) (comparing subsections one and two of § 52-557n(a)).
Section 52-557n(a)(1) provides a limited waiver of what is, in essence, sovereign immunity. That waiver must be narrowly construed. Spring v. Constantino, 168 Conn. 563, 570-71, 362 A.2d 871 (1975). It follows that the General Assembly's limitations in § 52-557n(a)(2) on the waiver of immunity contained within § 52-557n(a)(1) must be broadly construed. Neddeau v. Town of N. Stonington, Superior Court, judicial district of New London, Docket No. CV-14-6021737-S, (July 16, 2015). In this regard, the statute is consistent with the common law. Id.
The defendant contends that, as a matter of law, it is entitled to immunity from claims arising from an accumulation of water on the locker room floor because its acts and omissions in inspecting and maintaining the school's facilities, in general, and the locker room floor, in particular, are discretionary, i.e., " require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." § 52-557n(a)(2). The plaintiff contends that the defendant's acts and omissions in maintaining the locker room should be considered ministerial in nature.
Generally, the time and manner of exercising duties of inspections, maintenance and repair of hazards are considered discretionary in nature and protected by governmental immunity. See Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989) (what constitutes reasonable, proper or adequate inspection is discretionary because it involves exercise of judgment); Segreto v. Bristol, 71 Conn.App. 844, 857-58, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002) (determining what is reasonable or proper under particular circumstances necessarily involves exercise of judgment). A municipal body's decisions as to the time, frequency, method and extent of inspections, maintenance and repairs is discretionary. Grignano v. Milford, 106 Conn.App. 648, 656, 943 A.2d 507 (2008). In contrast, to show that a municipality's duty to warn was ministerial in nature, the claimant must show there is a policy or other legal requirement of a specific response under the circumstances. Deutsch v. Town of Beacon Falls, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6008883-S, (July 23, 2013).
" In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner." (Internal quotation marks omitted.) Coley v. Hartford, 140 Conn.App. 315, 323, 59 A.3d 811 (2013), aff'd, 312 Conn. 150, 95 A.3d 480 (2014). Where a plaintiff has failed to offer evidence of a directive or policy limiting the discretionary nature of a municipal employee's duties, a court may properly conclude that the duty was discretionary in nature as a matter of law. See Martel v. Metropolitan District Commission, supra, 275 Conn. 50-51. " [E]ven when the duty to respond to a violation of law is ministerial because that specific response is mandated, the predicate act--determining whether a violation of law exists--generally is deemed to be a discretionary act." (Emphasis in original.) Bonington v. Westport, 297 Conn. 297, 309, 999 A.2d 700 (2010).
" Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the factfinder . . . there are cases where it is apparent from the complaint . . . [that the nature of the duty] and, thus, whether governmental immunity may be successfully invoked pursuant to . . . § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint . . . Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." (Internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 162, 95 A.3d 480 (2014).
In the present case, the plaintiff alleges that the defendant was negligent for eleven reasons, all of which may be summed up as the failure to prevent or eliminate the dangerous condition of water on the floor which the plaintiff claims caused her to slip and fall, and the failure to warn her of that condition. These actions have consistently been viewed by the courts as involving discretion. See Evon v. Andrews, supra ; Segreto v. Bristol, supra, 71 Conn.App. 857-58 (defendant's duty to inspect and maintain premises in reasonably safe conditions requires judgment). The evidence in support of the present motion, including the testimony of Raymond Watson (the school's head custodian) and of Kendall Jackson (Director of Education Operations for Colchester public schools), entirely lacks any indication that the defendant established any policy or directive making its employees' inspection and maintenance of the locker room ministerial acts. Watson testified, in a deposition, that the school's custodians did not receive any written instructions specifically describing their duties to inspect, maintain and clean the school's floors. Watson also testified that the custodians were required to complete a maintenance checklist, but that the checklist " doesn't say nothing about a particular floor . . . [W]e take it upon ourselves to . . . check . . . floors. And when we go opening up, we check for general cleanliness, conditions, vandalism, you know, safety concerns." When asked about written directives or policies relating to the maintenance and inspection of the school's floors, Director Jackson testified, in a deposition, that " [t]here's a general board of education policy with regard to the maintaining--the school shall be maintained in a clean and safe environment type thing. But it's just a broad overview-type policy." By affidavit, Jackson testified that, " [t]he scheduling and the manner in which custodian[s] perform the tasks on the monthly maintenance checklist are left to the custodians' discretion." From the evidence, it is clear that the school's custodians were permitted and expected to use their discretion as to when and how to inspect and clean the locker room. The court concludes, therefore, that the defendant has met its burden of showing that there is no genuine issue of material fact as to the discretionary nature of the defendant's, and its employees, ' inspections and cleaning the subject locker room.
When Raymond Watson was asked whether he ever received " anything in writing from the board of education detailing how you would go about cleaning and maintaining the school floors at Bacon Academy, " he replied: " Not to my knowledge, no."
The court interprets this double negative as a simple negative. To deny summary judgment based on interpreting " doesn't say nothing" as " does say something" [about a particular floor] would, especially in light of the plaintiff's failure to show what was said in that regard, elevate form over substance.
The burden now shifts to the plaintiff to show that there is a genuine issue of material fact after all: that such a question exists as to whether the defendant's duty to maintain and clean the locker room was discretionary or ministerial. Because the court does not weigh the evidence in ruling on a motion for summary judgment; see Martin v. Westport, 108 Conn.App. 710, 728, 950 A.2d 19 (2008); the court takes all the evidence presented by the plaintiff as true for purposes of this analysis.
Although Sec. 52-557n(b) provides, " . . . a political subdivision of the state . . . shall not be liable for damages to person or property resulting from . . . (6) the act or omission of someone other than an employee, officer or agent of the political subdivision[, ]" the court assumes for purposes of this analysis the truth of the plaintiff's implicit allegation that the puddle was not caused by a third party.
First, the plaintiff claims the existence of a triable issue of material fact as to whether immunity bars her claim is apparent from the deposition testimony of Anna DiPierro (the school's physical education/health teacher) that she was responsible for the safety of her students and for keeping the locker room reasonably safe for them, and that, after the plaintiff's accident, she cleared the water from the locker room floor. When DiPierro was asked, " were you responsible to look at the hallway floor to see whether or not there was some unsafe condition on the floor that needed attention?" She answered: " I would do that just because, not saying it was a responsibility." (Emphasis added.) DiPierro's testimony reveals no municipal " charter provision, ordinance, regulation, rule, policy, or any other directive [requiring her or any employee of the defendant] to [act] in any prescribed manner." (Internal quotation marks omitted.) Coley v. Hartford, supra .
DiPierro answered affirmatively the questions " [y]ou recognize as a . . . teacher for Bacon that you were responsible for the safety of the students?" and " [i]n May of 2013 was it a job responsibility of yours to make sure that the girls' locker room was reasonably safe for the students to use?" DiPierro testified that, upon discovering the subject puddle on the locker room floor after the plaintiff's fall, she walked the plaintiff to the plaintiff's father then " came back and wiped it up."
Second, the plaintiff argues that certain instructions included in the defendant's custodians' job descriptions, viewed together with the Bacon Academy building safety checklist, show that the defendant's employees had no discretion in when or how they inspected, cleaned, and maintained the locker room. This court does not agree. With respect to the custodians' job descriptions, the plaintiff relies on general statements pertaining to the custodians' duty to keep the school facilities clean, and the specific task to " maintain the cleanliness and appearance of all hard surface flooring, including but not limited to: sweeping, mopping, scrubbing, vacuuming, polishing and waxing." A ministerial act " refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). The evidence regarding the general duties of the defendant is, as a matter of law, insufficient to show the existence of a triable issue as to whether those duties were ministerial. The statement in the job descriptions related to the custodians' cleaning of the school floors indicates only that, if necessary --a classic matter of discretion--the floors should be mopped. The fact that the custodians used a building checklist does not mean they had a ministerial duty to inspect and clean the locker room so as to keep it free of puddles.
The plaintiff lists numerous facts at the beginning of the discretionary/ministerial discussion pertaining to the custodians' job descriptions and the building safety checklist, but only at the end of the list argues that the evidence presents a triable issue of fact. In deference to the structure of the plaintiff's brief, the court construes this argument as her second ground, and Kolaniak v. Board of Education of Bridgeport, 28 Conn.App. 277, 610 A.2d 193 (1992), as her third ground.
The more general statements regarding the custodians' job are: (1) " maintaining a safe and clean building, " (2) " [m]aintain[ing] the cleanliness and sanitation of the building by performing all work assignment in accordance with department policies, procedures and schedules, " and (3) " keep[ing] [the] building, premises, including sidewalks and play areas neat and clean at all times." The plaintiff offers no " department policies, procedures and schedules" imposing on any custodian a duty devoid of discretion to assure no puddles existed on the locker room floor.
Regarding the checklist generally, Watson stated that: " We've got a building safety checklist that we perform on a monthly basis." Regarding maintenance of the tile floors, Watson stated: " Yeah. Going into calls for, you know, a spill or cleanups during the day, taking care of that. Inspection, looking for the condition of the floor. Check the cleanliness of it from the custodians." Regarding submission of the checklist to the building principal, Watson stated: " Well, at the end of the month it goes to the building principal who looks it over, signs off on it. I make a copy and I send it up to Mr. Jackson or the predecessor and they review it as well." Regarding the frequency of checking the women's locker room, Watson stated that: " It's getting maintained every day." The foregoing facts add to but do not work against Watson's and Jackson's statements indicating that the custodians' acts of inspecting and cleaning the school's locker rooms are discretionary.
Finally, the plaintiff argues that the defendant's duty was ministerial under Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992). In Kolaniak, our Appellate Court held that the duty of the defendant board of education to ensure that high school walkways were free of snow was ministerial because the school board issued a bulletin directing its custodians and maintenance personnel to keep school walkways free of snow on a daily basis. Id., 281. The bulletin was issued when it was snowing. Id., 278. The Kolaniak decision is distinguishable from this case because, in Kolaniak, the school board apparently perceived a present safety hazard in the accumulating snow on school sidewalks and issued an explicit directive concerning the clearing of the snow from those specific areas. That directive was key to the determination that clearing the snow from the sidewalks was ministerial. (The result of Kolaniak might have been different if the sidewalk on which the plaintiff fell had been plowed, but in an allegedly negligent way.) Again--and not surprisingly--there is no evidence of a policy or directive of the defendant or a job description of any defendant's employee to the effect, for example, that " any puddle on a locker room floor shall be removed immediately or warning signs or cones shall immediately be deployed." Indeed, comparison of the facts of Kolaniak with the facts of this case shows why, in this case, the defendant's policies and its employees' job descriptions are insufficient to make the defendant's duty to clear the puddle a ministerial one.
A " no puddles" policy in a women's locker room equipped with a shower or showers is impractical as matter of common sense and, since it would seem to require the near-constant presence of a female custodian, fiscal sense.
For the foregoing reasons, the plaintiff's three arguments, even taken together, fail to demonstrate the existence of a genuine issue of material fact as to whether the defendant's actions regarding the inspection and maintenance of the locker room were discretionary. Accordingly, pursuant to General Statutes § 52-557n(a)(2)(B), governmental immunity shields the defendant from liability as a matter of law unless an exception is found to apply.
The only exception to governmental immunity from suit for discretionary acts or omissions which the plaintiff claims applies in this case is the " identifiable person-imminent harm" exception. See Evon v. Andrews, supra, 211 Conn. 505-06 (listing three exceptions). This exception requires the plaintiff to show each of three elements: an imminent harm; an injured person who is an identifiable victim of that particular harm (or a member of a recognized and narrowly-defined class of identifiable victims); and a public official who is actually aware that his or her conduct is likely to subject that victim (or member of such class) to that harm. Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009). The plaintiff argues, first, that she falls within the class of foreseeable victims of the puddle of water on the locker room floor.
The " only identifiable class of foreseeable victims that [courts have] recognized for these purposes is that of schoolchildren attending public schools during school hours because: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 352, 984 A.2d 684 (2009). " Application of this [exception] has been similarly restrictive outside of the public school context because, in addition to not recognizing any additional classes of foreseeable victims, the decisions reveal only one case [ Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979)] wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for purposes of this exception to qualified immunity." Id., 353. Additionally, " [u]nder our case law . . . [the Supreme Court has] interpreted the identifiable person element narrowly as it pertains to an injured party's compulsion to be in the place at issue . . ." (Citations omitted.) Id., 356.
The plaintiff's first claim in this regard is that she is within a previously recognized class of identifiable victims of the alleged local government negligence because her participation in the varsity softball game prior to her use of the locker room was mandatory for team members and such use placed her and her teammates in a class of foreseeable and identifiable victims of the harm she alleges was imminent--a fall caused by slipping on a puddle in the locker room. The defendant points out that the plaintiff is not within a recognized " identifiable class of victims" because her participation in the softball game was voluntary and the accident occurred after regular school hours. This court agrees with the defendant. That the plaintiff, as a member of the Bacon Academy varsity softball team, was required to attend the softball game preceding her fall does not matter. That requirement is only a condition of continued participation in a voluntary sport. The plaintiff admits it was her option, and her decision, to join that team. No evidence, including the testimony of the varsity softball coach, suggests that the plaintiff was compelled to join that team. In Jahn v. Bd. of Educ. of Monroe, 152 Conn.App. 652, 655, 99 A.3d 1230 (2014), the Appellate Court held that, if a student voluntarily joins a sports team, his or her subsequent activities with the team will be deemed voluntary. Id., 667. See Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994) overruled in part on other grounds, Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014). Bearing in mind that statutes waiving sovereign immunity are to be interpreted strictly, the plaintiff's claim that her participation on the school's softball team " ceased being voluntary the moment [that she] became a member of defendant's varsity softball team" fails as a matter of law in the light of established case law. Except to note that the fact the plaintiff was in the locker room after school hours when she fell makes her claim more difficult, it is not necessary to discuss that fact.
There is no dispute as to the statements by Anna DiPierro in her deposition testimony that the plaintiff, together with the rest of the softball team, returned to Bacon Academy from an away game at 6:30 P.M. on the evening of May 7, 2013.
The plaintiff next urges this court to find that Strycharz v. Cady, 323 Conn. 548, 578, 148 A.3d 1011 (2016) places " the plaintiff squarely within the [recognized] identifiable class of victims" for purposes of the identifiable victim/imminent harm exception. The court cannot do so. Strycharz does not depart from the basic description of school students required to be at school during school hours as a recognized identifiable class of victims. Id., 556-57. Strycharz is both distinguishable and inapposite because the court quickly concluded that the plaintiff was within the foreseeable class of identifiable persons--students required to be at school during school hours. Id., 576. Therefore, the plaintiff's argument for the expansion of the foreseeable class of identifiable victims on the basis of the holding in Strycharz lacks merit.
The plaintiff argues that, even if she does not fall within a foreseeable class of identifiable victims, the identifiable person-imminent harm exception applies to her as an individual. This exception, the three elements of which are set forth above, applies " 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 . . . In order to meet the apparentness requirement, the plaintiff must show that the circumstances would have made the government agent aware that his or her acts or omissions would likely have subjected the victim to imminent harm . . . This is an objective test pursuant to which we consider the information available to the government agent at the time of her discretionary act or omission." (Citations omitted; internal quotation marks omitted.) Edgerton v. Clinton, 311 Conn. 217, 230-31, 86 A.3d 437 (2014).
The first problem with this claim is that the plaintiff does not clearly identify the defendant's agent who she claims " the circumstances would have made . . . aware that his or her acts or omissions would likely have subjected the [plaintiff] to imminent harm." See id.
The plaintiff asserts that she " walked on the same wet floor minutes earlier" and that the " [d]efendants [sic plural] knew of the dangerous condition." Apart from the law that mere assertions of fact are not evidence and are therefore insufficient to defeat the present motion; see Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015); there is no evidence that any employee or other agent of the defendant was aware of the hazard--the puddle on which the plaintiff slipped--or even of any source of water comprising the puddle other than the water from showers, which is neither mentioned nor ruled out. It is therefore evident that the defendant has satisfied its burden of proof, and the plaintiff's evidence does not support her assertion that there is a material question of fact as to whether Anna DiPierro (the only employee of the defendant claimed to be nearby when the plaintiff fell) or any other employee or agent of the defendant knew of the puddle, let alone knew that his or her conduct in not mopping up the puddle or otherwise protecting the plaintiff from it was likely to subject the plaintiff to harm.
Anna DiPierro was asked in her deposition, " So it's about 6:30ish p.m. on May 7th, now entering the girls' locker room via the front entrance. Do you see any water on the floor?" She answered, " No." When asked whether she saw any water on the floor near the door to her office, DiPierro answered, " No." DiPierro also testified that she did not see any jugs or buckets, or the cooler that another student had been assigned to return.
CONCLUSION
Based on the foregoing, the court concludes that the defendant's conduct in maintaining the locker room was discretionary for purposes of governmental immunity, and that there is no material issue of fact as to whether the identifiable person-imminent harm exception prevents the defendant from entitlement to judgment as a matter of law. In this determination, it has not been necessary to apply the principle that the waiver of immunity in § 52-557n(a) must be strictly construed. See Spring v. Constantino, supra . Accordingly, the defendant's motion for summary judgment is granted.