Opinion
No. CV-06-5000318S
March 7, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendant, the City of Middletown Board of Education, has moved for summary judgment on the grounds that the Complaint fails to allege a cause of action that serves to abrogate the doctrine of governmental immunity, and the Complaint fails to plead a cognizable claim under Connecticut General Statutes § 7-465 or § 10-235.
Facts
Neither party has submitted any affidavit or other evidence in connection with the Motion for Summary Judgment. It appears that, at least for the purposes of that motion, the defendant is accepting the factual allegations of the Complaint as being true.
The Complaint alleges that on February 4, 2006, the plaintiff, Dawn Roman, was a parent of students attending a childcare program at the Snow School in Middletown. At 7:30 a.m. the plaintiff arrived at Snow School to drop her two children off for the childcare program. The plaintiff alleges that she parked her vehicle in front of the school and started walking on the walkway towards the entrance, when she was caused to slip and fall on ice and snow on the walkway.
The plaintiff alleges that the City of Middletown Board of Education, its servants, agents or employees, were negligent in a number of ways, including the failure to supervise custodians to keep the walkway safe, allowing the walkway to be icy and unsafe, failing to warn the plaintiff about the conditions and failing to inspect and remedy the conditions.
Discussion of the Law and Ruling
Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the coexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert. denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
The defendant raises both procedural and substantive grounds for the entry of summary judgment. The plaintiff has created a procedural problem by amending the Complaint in response to the defendant's request to revise to allege that she relies on Connecticut General Statutes § 7-465 and § 10-235.
Connecticut General Statutes § 7-465(a) provides in relevant part:
Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded . . . for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . Governmental immunity shall not be a defense in any action brought under this section . . .
Connecticut General Statutes § 10-235 provides in relevant part:
(a) 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, . . . 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 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 ; provided that the provisions of this section shall not limit or otherwise affect application of section 4-165 concerning immunity from personal liability.
Connecticut General Statutes § 52-557n provides in relevant part:
Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions. (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; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (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: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (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.
Connecticut General Statutes § 7-465 and § 10-235 are indemnification statutes. The plaintiff has not sued any individual employee or agent of the Board of Education. Therefore, there is no defendant who can be identified under those statutes. In Gaudino v. Town of East Hartford, 87 Conn.App. 353, 865 A.2d 470 (2005), the plaintiff's failure to sue an individual employee while relying upon § 7-465 was fatal.
In Spears v. Garcia, 263 Conn. 22, 818 A.2d 37 (2002) the Supreme Court held that failure to cite Connecticut General Statutes 52-557n in a complaint was not fatal to the plaintiff's case. The defendant argues that the present case is distinguishable from Spears because the plaintiff here does rely on § 7-465 and § 10-235, indemnification statutes, while the plaintiff in Spears had plead no statute.
Since the plaintiff has not sued any individual employee or agent of the City of Middletown, or the Middletown Board of Education, reliance on § 7-465 and § 10-235 is unnecessary. Under Spears, a plaintiff can proceed directly against the Board of Education pursuant to § 52-557n even if she has failed to allege that statute. This court will not grant the summary judgment against the plaintiff based on the plaintiff's reference to the wrong statutes when the facts plead in the Complaint do state a cause of action against the Board of Education under § 52-557n.
The defendant's substantive argument is that the defendant's conduct as alleged in the Complaint is based on "acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." Connecticut General Statutes § 52-557n(a)(2)(B). As such the defendant enjoys immunity under that statute.
The plaintiff argues that she falls within the class of identifiable victims subject to imminent harm, an exception to governmental immunity, under Durrant v. Board of Education of the City of Hartford, 96 Conn.App. 456, 900 A.2d 608 (2006).
The defendant argues that Durrant is at odds with the Supreme Court decisions of Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994), and Prescott v. Meriden, 273 Conn. 59, 873 A.2d 175 (2005).
In Prescott the plaintiff was seriously injured when he slipped while in the stands watching his son play football. The Court held that the school and its agents enjoyed immunity from suit under § 52-557n and that the plaintiff did not fall within the identifiable victim exception, stating:
Thus far, the only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours. See id., 640; see also Purzycki v. Fairfield, supra, 244 Conn. 101 (determining whether there was sufficient evidence of imminent harm to schoolchild). In determining that such schoolchildren were within such a class, we focused on the following facts: 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. Burns v. Board of Education, supra, 228 Conn. 648-50. None of these kinds of considerations applies to the plaintiff in the present case, and the applicable considerations point in the opposite direction.
Prescott v. Meriden, supra, at p. 764.
The Court in Durrant, ostensibly relying on Prescott, held that the plaintiff parent of a six-year-old student at a public school, who was injured when she slipped and fell on school premises while picking up her son from an after school day care program, fell within the identifiable victim exception. In his dissent in Durrant, Judge Schaller states:
I respectfully disagree with this result because it expands one of the limited exceptions to this general rule. Because the adult plaintiff was on school property to pick up her child, who was attending an extracurricular, after school day care and homework study program, I believe that the majority has exceeded the firm standards established by our Supreme Court in Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994), and more recently in Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005).
Durrant v. Board of Education, supra, at pp. 472-73.
Judge Schaller opines that the majority has misapplied Prescott and Burns because 1) the plaintiff's presence at the school was purely voluntary, 2) the plaintiff was entitled to no special protection by the school because she was a parent, not a student, and 3) considering the plaintiff to be within the class of identifiable victims violates the holdings of Burns and Prescott that such class is "narrowly defined."
Were this court to apply Burns and Prescott to the facts of Durrant, the plaintiff would not have fallen within the identifiable victim's exception and the summary judgment would have been granted in favor of the defendants. However, the facts of this case are quite similar to the facts of Durrant and this court is bound by both Prescott and Durrant. The Supreme Court granted the defendants' petition for certification for appeal in Durrant. Durrant v. Board of Education of the City of Hartford, 280 Conn. 915, 908 A.2d 536.
Based on the aforementioned state of the law, the Motion for Summary Judgment is denied without prejudice to the reconsideration of same if the Supreme Court reverses the ruling of the Appellate Court in Durrant, or when the plaintiff's status as an identifiable victim is clarified by other appellate or statutory authority.