Opinion
CV146044518S
05-09-2016
Mason McCarroll v. City of East Haven
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #114
Brazzel-Massaro Barbara, J.
FACTS
On January 27, 2014, the minor plaintiff, Mason McCarroll (Mason), through his mother and next friend, Nichole McCarroll (Nichole), commenced a two-count negligence action against the defendant, the town of East Haven. The plaintiffs filed an amended complaint on September 22, 2015, and allege the following facts. On April 12, 2012, Mason was a kindergarten student at D.C. Moore Elementary School (D.C. Moore), which is a public elementary school located in East Haven. At that time, there was a wooden playscape located on the premises of D.C. Moore, which was intended for use by the D.C. Moore students, and consisted of a tower, several slides, a wooden ramp, and a five-rung, rubber-coated metal ladder. The playscape was in decrepit condition, and the protective mulch underneath the playscape had eroded, resulting in a hard and uneven dirt surface. The playscape's rubber-coated metal ladder was in a similar decrepit condition--the first four rungs were bolted to three parallel wooden posts forming a " W" shape, but the fifth and highest rung was missing the bolt, forming a " U" shape. Additionally, the wood on the base of the " U" had begun to wear away from the friction of the chain.
The plaintiffs further allege that school officials and employees at D.C. Moore were aware of the playscape's decrepit condition, and a school employee was present at all times while students were playing on the playscape. On April 12, 2012, however, Mason was playing on the playscape during recess at D.C. Moore and attempted to climb the rubber-coated metal ladder. Upon reaching the fifth rung, which was missing the bolt, Mason slipped and fell to the ground. As a result of the fall and the defendant's negligence, Mason suffered serious injuries, and the defendant is liable to the plaintiffs pursuant to General Statutes § 52-557n for the negligence of the D.C. Moore school officials.
Section 52-557n provides in relevant part:
On September 11, 2014, the defendant filed an amended answer to the plaintiffs' January 27, 2014 complaint, as well as four special defenses. In the defendant's special defenses, it alleges, among other things, that it is immune from suit pursuant to the doctrine of governmental immunity. The plaintiffs filed a reply on October 1, 2014, and deny the defendant's special defenses.
On March 17, 2015, the defendant filed a motion for summary judgment, along with a supporting memorandum of law and accompanying exhibits, on the ground that there are no genuine issues of material fact as to whether: (1) the defendant owed a duty to the plaintiffs for maintaining the facilities located at D.C. Moore Elementary School; and (2) in the alternative, the plaintiffs' negligence claims are barred by the doctrine of governmental immunity pursuant to General Statutes § 52-557n. The plaintiffs filed an objection to the defendant's motion, with a supporting memorandum of law and accompanying exhibits, on September 22, 2015. The matter was heard at the short calendar on February 15, 2016, and this court granted the plaintiffs' request to file a supplemental response to the defendant's motion for summary judgment, which the plaintiffs filed on February 22, 2016.
DISCUSSION
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can be warrantably inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " [S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 535, 51 A.3d 367 (2012).
" 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
In the defendant's memorandum of law, it argues that there is no genuine issue of material fact because the defendant did not owe a duty to the plaintiffs for maintaining the facilities located at D.C. Moore. Specifically, it argues that General Statutes § 10-220 delegates the responsibility of maintaining school facilities to the local board of education, and General Statutes § 10-157 permits local boards of education to elect a superintendent of schools to carry out these duties. It contends that given the language of § § 10-220(a) and 10-157(a), it is evident that the duty to maintain the D.C. Moore facilities is the responsibility of the local board of education and superintendent. As a result, the defendant argues that it is not the proper party in the present action because it owed no duty to the plaintiffs--rather, the proper parties are the East Haven Board of Education (Board) and superintendent. In the alternative, the defendant argues that it is entitled to judgment as a matter of law under the doctrine of governmental immunity, as the conduct alleged is discretionary in nature, and therefore, cannot be the basis of a negligence claim under § 52-557n. Specifically, the defendant contends that the plaintiffs have failed to allege any provision or policy which dictates how the defendant was required to maintain or inspect the playscape at D.C. Moore, and that there are no regulations, rules, policies or ordinances in regards to such. Additionally, the defendant argues that none of the exceptions to the governmental immunity doctrine are applicable under the present circumstances. In support of its motion, the defendant attaches the signed and sworn affidavit of Robert Parente, Superintendent of Operations for East Haven, in which he stated that East Haven and the Board are separate and distinct entities, and that the Board has the duty to inspect and maintain the D.C. Moore facilities (Def.'s Ex. B).
Section 10-220(a) provides in relevant part: " Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state . . . and provide such other educational activities as in its judgment will best serve the interests of the school district; provided any board of education may secure such opportunities in another school district in accordance with provisions of the general statutes and shall give all the children of the school district as nearly equal advantages as may be practicable; shall provide an appropriate learning environment for its students which includes (1) adequate instructional books, supplies, materials, equipment, staffing, facilities and technology, (2) equitable allocation of resources among its schools, (3) proper maintenance of facilities, and (4) a safe school setting; shall . . . have the care, maintenance and operation of buildings, lands, apparatus and other property used for school purposes . . ."
In the plaintiffs' objection to the defendant's motion for summary judgment, and in their supplemental response, the plaintiffs counter that there is a genuine issue of material fact as to whether the defendant owed a duty of care to the plaintiff. In particular, the plaintiffs argue that local boards of education act on behalf of the municipality, and therefore, the Board and its employees are agents of the defendant, making the defendant ultimately accountable for the negligence of the Board and its employees. The plaintiffs contend that, as a result, the defendant is properly subject to suit for the negligence of the Board and its employees in failing to maintain the D.C. Moore playscape. The plaintiffs also counter that the defendant is not entitled to governmental immunity under § 52-557n because the duty to maintain and inspect a defective condition on a playscape is a ministerial duty. Specifically, the plaintiffs argue that § 10-220(a) dictates that local boards of education shall provide proper maintenance of school facilities, and the defendant's failure to do so violated a ministerial duty. The plaintiffs further argue that even if the defendants' acts are found to be discretionary, Mason falls within the identifiable victim imminent harm exception to governmental immunity since Mason is a schoolchild, a member of a class of victims that courts consider identifiable. In support of their objection, the plaintiffs offer an unauthenticated copy of Mason's East Haven Public School's accident report, which stated that Mason had been climbing on the playscape, fell back, and hurt his elbow (Pl.'s Ex. A); the signed and sworn affidavit of Nichole, in which she stated that she picked Mason up from D.C. Moore after he had hurt his elbow, subsequently examined the playscape, and noticed that the bolt on the fifth rung was loose (Pl.'s Ex. B); and uncertified portions of Portia Bonner's, Superintendent of the Board, deposition transcript (Pl.'s Ex. C).
As a threshold issue, the court must determine whether the evidence submitted by the parties is properly authenticated. " [B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 129 Conn.App. 481, 493, 21 A.3d 889 (2011), rev'd on other grounds, 310 Conn. 304, 77 A.3d 726 (2013). " Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them." Perrone v. Sutfin, Superior Court, judicial district of New Haven, Docket No. CV-10-6007487-S (August 16, 2011, Zoarski, J.T.R.) (52 Conn. L. Rptr. 439, 440, *7).
I.
NEGLIGENCE
The defendant argues that there is no genuine issue of material fact as to whether the defendant owed a duty of care to the plaintiffs for maintaining the D.C. Moore facilities. Specifically, the defendant argues that the duty to maintain the facilities is the responsibility of the Board and superintendent. The plaintiffs counter that local boards of education act on behalf of the municipality, and therefore, the Board and its employees are agents of the defendant, making the defendant ultimately accountable for the negligence of the Board and its employees.
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012). " To recover on a theory of negligence, the plaintiff must establish that the [defendant] owed a duty to [the injured person] and breached that duty . . . The existence of a duty is a question of law . . . Only if such a duty is found to exist does the trier of fact then determine whether the [defendant] violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Vitale v. Kowal, 101 Conn.App. 691, 698, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
The Appellate and Supreme Courts have not directly addressed the issue of whether municipalities are ultimately accountable for the negligence of its local boards of education and employees. The Supreme Court in Cheshire v. McKenney, 182 Conn. 253, 258-59, 438 A.2d 88 (1980), however, in briefly discussing both General Statutes § § 10-240 and 10-220, stated that " [l]ocal boards of education are also agents of the municipality that they serve . . . [Section] 10-240 provides, in part: Each town shall through its board of education maintain the control of all the public schools within its limits. Local boards of education act on behalf of the municipality, then, in their function of maintaining control over the public schools within the municipality's limits." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.)
Section 10-240 provides: " Each town shall through its board of education maintain the control of all the public schools within its limits and for this purpose shall be a school district and shall have all the powers and duties of school districts, except so far as such powers and duties are inconsistent with the provisions of this chapter."
The Superior Court specifically addressed this issue, which was only briefly discussed in Cheshire, in Carlino v. Seymour, Superior Court, judicial district of Milford, Docket No. CV-92-0030838-S (June 19, 1998, Corradino, J.) (22 Conn. L. Rptr. 362). The plaintiff alleged that she had been injured when she fell down in the parking lot of a public school in the town of Seymour (Town). Id., 362. The plaintiff filed suit against multiple parties, one of which was the Town. Id. The defendant Town moved for summary judgment on the basis that pursuant to § 10-220, the duty to maintain school property clearly rested with the board of education, and as a result, the plaintiff could not establish a duty owed by the defendant. Id. The court rejected the defendant Town's argument and found that, " the language of § 10-220 did not intend to abrogate the law of agency. In other words, the fact that the statute imposes this duty of care and maintenance on the Board does not mean that the Board is not an agent of a principal that can be sued as a result of its agency relationship . . . Town boards of education, although they are agents of the state responsible for education in the towns, are also agents of the towns and subject to the laws governing municipalities. Thus, boards seem always to be agents of the town . . ." (Citations omitted; internal quotation marks omitted.) Id., 363.
The court further found, " [l]ocal boards of education are . . . agents of the municipality that they serve . . . [Section] 10-240 provides, in part: Each town shall through its board of education maintain control of all the public schools within its limits. Local boards of education act on behalf of the municipality, then, in their function of maintaining control over the public schools within the municipality's limits . . . In other words, in imposing care and maintenance responsibility on the boards of education, [§ ]10-220 says nothing as to whether in so acting a board acts as an agent of the towns or the state. But the towns under [§ ]10-240 maintain the control of all the public schools within their limits. Towns approve budgets which directly relate as to how boards are equipped and staffed to handle their responsibilities of care and maintenance, board members are town officials . . . and board employees are town employees. It seems to make more sense to impose liability on the town as principal in these situations . . ." (Citations omitted; internal quotation marks omitted.) Id., 363-64. The court ultimately denied the defendant Town's motion for summary judgment, finding that the defendant Town could be held accountable for the negligence of its local board of education and employees. Id., 364.
This issue was again addressed in the recent Superior Court case of Fasano v. East Hartford, Superior Court, judicial district of Hartford, Docket No. CV-11-6017856-S, (June 5, 2014, Stengel, J.T.R.). The plaintiff alleged that in the course of her employment as a food service worker at Woodland School in East Hartford, she sustained injuries when she slipped and fell on defective tiles in the food preparation area of the school's kitchen. Id. She commenced a negligence action solely against East Hartford. Id. In the plaintiffs' posttrial brief, she argued that the employees of the board of education were the employees/agents of the defendant, and the defendant was therefore liable for the negligent actions of those employees pursuant to § 52-557n. Id. The defendant, in its posttrial brief, countered that the plaintiff commenced the action against the wrong entity, because the board of education, and not the defendant, had possession and control of the school, and therefore, the defendant owed the plaintiff no duty of care. Id. The court rejected the defendant's argument and agreed with the plaintiff, stating that: " Pursuant to . . . § 10-240 . . . local boards of education are agents of municipalities with respect to maintenance of school property. The court finds that at the time of [the plaintiff's] injury, the Board of Education exercised control of Woodland School as the statutory agent of [the defendant]. [The plaintiff] therefore properly commenced this action against [the defendant]." Id.
In the present case, while the defendant contends that it owed no duty of care to the plaintiffs for maintaining the D.C. Moore facilities, this court is persuaded by the decisions in both Carlino and Fasano, and the Supreme Court's brief discussion of agency theory in Cheshire . In accordance with the courts' decisions in Carlino and Fasano, pursuant to § 10-240, the defendant here, through its Board, maintains control of all the public schools within its limits, which includes D.C. Moore. Additionally, pursuant to § 10-220(a), the Board, in acting as an agent of the defendant, is tasked with providing both proper maintenance of D.C. Moore facilities and a safe school setting. Thus, at the time of Mason's injury, which allegedly occurred on a D.C. Moore playscape that was not properly maintained, the Board exercised control of D.C. Moore as the statutory agent of the defendant. As a result, the plaintiff properly commenced this action against the defendant, and the defendant, as the principal, did owe a duty of care to the plaintiffs for maintaining the D.C. Moore facilities. Therefore, the defendant can be subject to suit for negligence as a result of this agency relationship, and the defendant's motion for summary judgment should be denied on this ground.
II.
GOVERNMENTAL IMMUNITY
Since the defendant did owe a duty of care to the plaintiffs, the court must now determine whether the doctrine of governmental immunity applies. The defendant argues that it is entitled to judgment as a matter of law under the doctrine of governmental immunity, because the conduct at issue is discretionary in nature, and therefore, cannot be the basis of a negligence claim under § 52-557n. The defendant contends that because the plaintiffs have failed to allege any provision or policy which dictates how the defendant was to maintain or inspect the playscape at D.C. Moore, the alleged negligent acts were clearly discretionary, and as a result, merit the protection of government immunity. The plaintiffs counter that the defendant is not entitled to governmental immunity under § 52-557n because the duty to maintain and address a defective condition on a playscape is a ministerial duty pursuant to § 10-220(a).
" The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; footnote omitted; internal quotation marks omitted). Martel v. Metropolitan District Commission, 275 Conn. 38, 48-49, 881 A.2d 194 (2005). The tort liability of a municipality and its agents or employees has been codified in § 52-557n(a)(1), which 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 . . ." Section 52-557n(a)(2) provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
" Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that--despite injury to a member of the public--the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Footnote omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318-19, 907 A.2d 1188 (2006).
" [W]hen a complaint against municipal defendants and employees sounds in negligence, a determination has to be made whether the alleged acts or omissions are ministerial or discretionary in nature. If the complaint alleges negligence in the performance of discretionary acts, the claims will be barred on the ground of governmental immunity unless there is a statute that abrogates the immunity or unless one or more of the three well established exceptions to discretionary act immunity applies under the circumstances of the case." Avoletta v. Torrington, 133 Conn.App. 215, 225, 34 A.3d 445 (2012). " [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 the] resolution of those factual issues is properly left to the jury." (Emphasis added; internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 160, 95 A.3d 480 (2014).
" 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 . . . [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." (Emphasis added; internal quotation marks omitted.) Id., 162.
" [F]or the purposes of § 52-557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists." Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010); see also Martel v. Metropolitan District Commission, supra, 275 Conn. 50 (holding defendants' conduct was discretionary because plaintiff did not present any evidence demonstrating that policy or directive existed requiring defendants to supervise, inspect, and maintain trails and mark, close, or barricade trails). Moreover, " [a] ministerial duty on the part of an official often follows a quasi-judicial determination by that official as to the existence of a state of facts. Although the determination itself involves the exercise of judgment, and therefore is not a ministerial act, the duty of giving effect, by taking appropriate action, to the determination is often ministerial." (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 309, 999 A.2d 700 (2010). " In order to overcome qualified immunity in such cases, the plaintiff must plead and prove that the official made the discretionary determination that triggered the ministerial duty." Id., 310.
In DiMiceli v. Cheshire, 162 Conn.App. 216, 218, 131 A.3d 771 (2016), the minor plaintiff was allegedly injured while playing on a seesaw at a playground at the Quinnipiac Recreation Area, a public park operated and maintained by the defendant. The minor plaintiff, through his parents and next friends, filed a negligence action against the defendant, alleging that the defendant was negligent when it failed to, among other things, replace and maintain the old fashioned seesaw with a newer version. Id., 219. The trial court determined that the defendant was entitled to judgment as a matter of law because the negligence count was barred by the doctrine of governmental immunity. Id. The plaintiffs appealed and argued that a genuine issue of material fact existed as to whether the defendant's duty to inspect and maintain the playground and seesaw was ministerial or discretionary in nature. Id., 222. The plaintiffs further argued that there were three possible sources for the defendant's alleged ministerial duties, one of which was Chapter 11, § 1 of the Cheshire Code of Ordinances (ordinance). Id., 225.
The court stated, " [i]n general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity . . . A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs . . . In their complaint, the plaintiffs allege that the defendant failed to maintain the park and the seesaw in a safe condition and that [t]he duties owed by the defendant were ministerial in nature." (Citations omitted; internal quotation marks omitted.) Id., 224-25. The court further stated, " [t]he trial court reasoned as follows: With respect to the ordinance, the plaintiffs] [argue] that a sentence in [the ordinance] creates a ministerial duty. [The ordinance] states: [t]he town's parks and recreational facilities shall be maintained for the residents of Cheshire and guests in their company. The plaintiffs] essentially [argue] that the use of the imperative 'shall' indicates that the ordinance requires the defendant to maintain the park and the seesaw. The court disagrees with [that] interpretation . . . [I]n order for a duty to be considered ministerial, it must be performed in a prescribed manner without the exercise of judgment or discretion . . . The ordinance does not prescribe any particular manner of performance; it simply states that recreational facilities shall be maintained . . . Absent such prescription, the ordinance does not and did not impose a ministerial duty on the defendant." (Emphasis in original; internal quotation marks omitted.) Id., 225-26. The court, in affirming the decision of the trial court, concluded that " [b]ecause it was legally and logically correct for the trial court to have concluded that the acts and omissions alleged in the complaint necessarily were discretionary in nature and, thus, not ministerial . . . the court properly determined that the defendant was entitled to judgment as a matter of law on the defendant's governmental immunity defense." (Citations omitted.) Id., 229.
Similarly here, the plaintiffs argue that the language of § 10-220(a) creates a ministerial duty and requires the defendant to maintain the playscape. Like the ordinance analyzed in DiMiceli, however, the statute here does not prescribe any particular manner of performance in regards to the maintenance of the playscape. Rather, it simply provides that an appropriate learning environment shall be provided to students, which includes the proper maintenance of facilities. The plain language of § 10-220(a) indicates that the duty to maintain the school facilities involves the exercise of judgment and discretion, particularly regarding decisions with respect to the timing, frequency, and method of inspections, maintenance, and repairs of the playscape. As a result, the plaintiffs do not raise a genuine issue of material fact as to whether this statute imposes a ministerial duty on the defendant. Accordingly, since the defendant's conduct was discretionary rather than ministerial, and governmental immunity applies, the court must determine next whether the plaintiff falls within an applicable exception to governmental immunity.
III
EXCEPTIONS TO GOVERNMENTAL IMMUNITY
The defendant argues that none of the exceptions to the governmental immunity doctrine are applicable under the present circumstances. The plaintiffs counter that, even if the defendant's acts are considered discretionary, the identifiable person imminent harm exception applies.
Three common-law exceptions to governmental immunity are recognized, but only the identifiable person imminent harm exception applies in the present case. The Supreme Court has explained that the identifiable person imminent harm exception, " allows for liability 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 . . . This identifiable person-imminent harm exception has three requirements: (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 . . . All three must be proven in order for the exception to apply." (Internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 312-13, 101 A.3d 249 (2014). " All three of these factors . . . must be met for a plaintiff to overcome qualified immunity." Fleming v. Bridgeport, 284 Conn. 502, 533, 935 A.2d 126 (2007). " The identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims, as well as identifiable individuals." Cotto v. Board of Education of New Haven, 294 Conn. 265, 274, 984 A.2d 58 (2009).
With respect to the identifiable person element, " an individual person may be considered an identifiable person if he or she falls within a certain class of victim intended to be the beneficiary of the relevant duty of care." (Internal quotation marks omitted.) Haynes v. Middletown, supra, 314 Conn. 335. " An individual may be identifiable for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition." (Internal quotation marks omitted.) Cotto v. Board of Education of New Haven, supra, 294 Conn. 275-76. In actuality, " the only identifiable class of foreseeable victims that [our Supreme Court has] recognized for these purposes is that of schoolchildren attending public schools during school hours." (Internal quotation marks omitted.) Id., 274; see also Purzycki v. Fairfield, 244 Conn. 101, 110, 708 A.2d 937 (1998) (concluding that plaintiff, schoolchild, who was tripped when walking down school's hallway from lunchroom to recess was an identifiable victim); Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994) (concluding plaintiff, schoolchild, who slipped and fell due to icy conditions on main access way of school campus during school hours, was identifiable victim).
With regard to the imminent harm element, " the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." (Emphasis added; footnote omitted.) Haynes v. Middletown, supra, 314 Conn. 322-23. This analysis focuses not on " the duration of the alleged dangerous condition, but on the magnitude of risk that the condition created." (Emphasis in original.) Id., 322. " [T]he imminence of harm [is] intrinsically related to the probability that the harm would occur due to the dangerous condition." Williams v. Housing Authority of Bridgeport, 159 Conn.App. 679, 703, 124 A.3d 537, cert. granted on other grounds, 319 Conn. 947, 125 A.3d 528 (2015). For example, as the court analyzed in Haynes v. Middletown, supra, 314 Conn. 321 n.13, " if a condition causing a risk of harm is short of duration and the harm actually occurs, this fact, in of itself, does not conclusively establish a high likelihood of harm, especially if the condition is of a recurring nature . . . In other words, if an icy patch forms and melts on a school walkway numerous times over the course of a winter, every year, or a group of students walks from the lunchroom to the recess yard once a day, every day, over the course of the school year, and does so every year, the fact that, during the existence of one of those temporary conditions, an injury occurred, does not necessarily imply that the harm was imminent . . . [A] reasonable juror could conclude that the fact that thousands of students had walked on the icy walkway and from the lunchroom to the recess yard over the course of the years without being injured supports the conclusion that the harm was not imminent." (Citations omitted.)
Haynes v. Middletown, supra, 314 Conn. 303, explicitly overruled the imminent harm analyses set out in Purzycki v. Fairfield, supra, 244 Conn. 101, and Burns v. Board of Education, supra, 228 Conn. 640. The court in Haynes v. Middletown, supra, 316-17, stated that, " we conclude that the portion of this court's decision in Burns, on which Purzycki relied, holding that a harm is imminent when the condition causing the risk of harm is temporally limited and the risk of harm is 'significant and foreseeable' should be overruled."
In Williams v. Housing Authority of Bridgeport, supra, 159 Conn.App. 679, the Appellate Court interpreted the holding in Haynes, and found that it set out a four-pronged test for the identifiable victim imminent harm exception. The court stated: " [A]s we view Haynes, in order to qualify under the imminent harm exception, a plaintiff must satisfy a four-pronged test. First, the dangerous condition alleged by the plaintiff must be apparent to the municipal defendant . . . We interpret this to mean that the dangerous condition must not be latent or otherwise undiscoverable by a reasonably objective person in the position and with the knowledge of the defendant. Second, the alleged dangerous condition must be likely to have caused the harm suffered by the plaintiff. A dangerous condition that is unrelated to the cause of the harm is insufficient to satisfy the Haynes test. Third, the likelihood of the harm must be sufficient to place upon the municipal defendant a clear and unequivocal duty . . . to alleviate the dangerous condition. The court in Haynes tied the duty to prevent the harm to the likelihood that the dangerous condition would cause harm . . . Thus, we consider a clear and unequivocal duty . . . to be one that arises when the probability that harm will occur from the dangerous condition is high enough to necessitate that the defendant act to alleviate the defect. Finally, the probability that harm will occur must be so high as to require the defendant to act immediately to prevent the harm. All four of these prongs must be met to satisfy the Haynes test, and our Supreme Court concluded that the test presents a question of law . . . If no reasonable juror could find that even any one of the prongs could be met, then the imminent harm exception is unavailing." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 705-06.
" The apparentness requirement is grounded in the policy goal underlying all discretionary act immunity, that is, keeping public officials unafraid to exercise judgment . . . 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." (Citation omitted; emphasis in original; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 616-17, 903 A.2d 191 (2006). " 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 . . . We do not consider what the government agent could have discovered after engaging in additional inquiry." (Citations omitted; footnote omitted; internal quotation marks omitted.) Edgerton v. Clinton, 311 Conn. 217, 231, 86 A.3d 437 (2014).
In the present case, with respect to the identifiable person element, Mason was attending D.C. Moore, a public school, during school hours when he was allegedly injured on the playscape. Therefore, the plaintiffs' amended complaint and proffered evidence establishes that Mason is a schoolchild, a class of victims which our Supreme Court has recognized as identifiable and foreseeable. See Cotto v. Board of Education, supra, 294 Conn. 274. Accordingly, the identifiable person element is satisfied.
With respect to the imminent harm element, however, the plaintiffs' proffered evidence and arguments do not support their claim that the harm Mason allegedly suffered was imminent. In applying the Williams probability, four-pronged analysis to the present case, the plaintiffs have not submitted any evidence to satisfy the first prong of the Williams test. Namely, the plaintiffs have failed to produce evidence to support the contention that the alleged dangerous condition--the missing bolt in the highest rung on the playscape at D.C. Moore--was apparent to the defendant. While the plaintiffs submitted Mason's East Haven Public School's accident report (Pl.'s Ex. A), and deposition testimony of Portia Bonner, Superintendent of the Board (Pl.'s Ex. C), nowhere in the plaintiff's submitted evidence or complaint does it demonstrate that the defendant was aware of, had knowledge of, or was put on notice of the missing bolt. Rather, the plaintiffs argue that the entire playscape itself was in an apparent, decrepit condition. The dangerous condition that caused the alleged harm to Mason, however, was not the overall decrepit state of the playscape, but instead, was the missing bolt in the highest rung on the playscape, which was not immediately apparent to the defendant. The plaintiffs have also failed to satisfy the third and fourth prongs of the Williams test, in that they have not demonstrated that the probability of injury to Mason was so high that the defendant had a clear and unequivocal duty to act immediately to prevent harm--a reasonable juror could conclude that given the fact that thousands of D.C. Moore students had played on the decrepit playscape over the course of the years without being injured, the harm was not imminent. See Haynes v. Middletown, supra, 314 Conn. 321 n.13.
In sum, because the plaintiffs are unable to demonstrate that the alleged harm Mason suffered was imminent, the plaintiffs are not within the purview of the identifiable person imminent harm exception to governmental immunity. Therefore, as aforementioned, the alleged conduct was discretionary, and the defendant is entitled to judgment as a matter of law under the doctrine of governmental immunity.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment.
(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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. (b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: (1) The condition of natural land or unimproved property . . . (4) the condition of an unpaved road, trail or footpath, the purpose of which is to provide access to a recreational or scenic area, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe . . . (6) the act or omission of someone other than an employee, officer or agent of the political subdivision . . . (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances . . .
Section 10-157(a) provides in relevant part: " Any local or regional board of education shall provide for the supervision of the schools under its control by a superintendent who shall serve as the chief executive officer of the board. The superintendent shall have executive authority over the school system and the responsibility for its supervision. Employment of a superintendent shall be by election of the board of education."
In the present case, the defendant offers the signed and sworn affidavit of Robert Parente (Def.'s Ex. B), which is properly authenticated, and therefore, will be reviewed by the court. The plaintiffs offer an unauthenticated copy of Mason's accident report (Pl.'s Ex. A), and uncertified portions of Portia Bonner's deposition testimony (Pl.'s Ex. C), both of which are not properly authenticated. Nevertheless, the defendant fails to object to the improper authentication and thus, the court, in its discretion, shall consider plaintiffs' exhibits A and C. Additionally, the plaintiffs offer the signed and sworn affidavit of Nichole (Pl.'s Ex. B), which is properly authenticated, and therefore, it shall be reviewed by the court.