Opinion
No. HHD CV 09 5027091S
August 26, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT
FACTS
On February 9, 2009, the plaintiff, Kathleen Stoll, filed a two-count complaint alleging negligence by the defendants, the town of Windsor Board of Education (board) and the Oliver Ellsworth parent teacher's organization (PTO). There is also a separate action which has been brought by this plaintiff against Patricia Phelan, the school principal, and Elizabeth Feser, the superintendent of the Windsor Board of Education. In this complaint, the plaintiff alleges the following facts. The plaintiff was employed as a first grade teacher at the Oliver Ellsworth School (school) in Windsor, Connecticut. On March 9, 2007, the plaintiff was volunteering as a food server and chaperone at a dinner and dance event held at the school and sponsored by the PTO. The plaintiff was struck by a running student and knocked to the ground, causing her to sustain serious injuries to her right ankle. The plaintiff's injuries were caused by the negligence and carelessness of the defendants in that they failed to: ensure proper supervision of the students; ensure a sufficient number of chaperones and/or supervisors at the event; publish and require compliance with a code of conduct for after-school events; ensure that the area used for after-school events was safe and arranged to allow safe passage of students and volunteers; properly coordinate after-school events to keep volunteers safe from injury; and ensure that the event area was properly lit. Additional facts will be set forth as they become necessary to decide particular legal issues.
Count one alleges negligence by the town of Windsor Board of Education (board). Count two alleges negligence by the Oliver Ellsworth parent teacher's organization (PTO). The board and the PTO are referred to collectively as "the defendants." For purposes of this memorandum, the board is referred to singularly as "the defendant."
Stoll v. Phelan, et al, Docket No. HHDC CV0905028879S
The defendant board filed a motion for summary judgment as to count one of the complaint, on the grounds that it owed no duty of care to the plaintiff and that the plaintiff's negligence claim is barred by governmental immunity. A memorandum was submitted with supporting documentation attached.
The plaintiff filed an objection and memorandum in opposition. The plaintiff submitted evidence consisting of the affidavit of the plaintiff, and the plaintiff's "Windsor Public Schools Summative Evaluation" for the 2006-2007 school year.
The defendant filed a motion to strike paragraphs eight through fourteen of the plaintiff's affidavit, on the ground that the statements made therein are not based upon personal knowledge.
As of this date, the plaintiff has not submitted an objection to the defendant's motion to strike.
MOTION TO STRIKE
The defendant board argues that the court should strike paragraphs eight through fourteen of the plaintiff's affidavit submitted in support of the plaintiff's objection to the defendant's motion for summary judgment (Stoll affidavit), on the ground that statements set forth in those paragraphs are not based upon the plaintiff's personal knowledge.
The defendant also argues that the statements are contrary to the plaintiff's sworn deposition testimony and are conclusory statements not admissible in evidence. The court need not address these additional arguments as the defendant's motion to strike is resolved on the basis of the plaintiff's personal knowledge.
"Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). "[Practice Book § 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on `personal knowledge'; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995). "A motion to strike is the proper method to attack [an] . . . affidavit that does not comply with the rules [of practice]." 2830 Whitney Ave. Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 569 n. 3, 636 A.2d 1377 (1994).
In the present case, the Stoll affidavit is signed and notarized. In it, the plaintiff attests: "I am over the age of 18 and believe in the obligation of the oath." The plaintiff does not, however, attest that the statements contained therein are based upon her personal knowledge. It is reasonable to conclude that certain statements concerning the plaintiff's employment in the Windsor public school system and presence at the dance on March 9, 2007 are based upon the plaintiff's personal knowledge. But this reasoning cannot be extended to the statements made in paragraphs eight through fourteen. The statements in these paragraphs contain the plaintiff's opinion testimony and mimic the allegations set forth in her complaint. For example: "I and the other teachers in the alternative were foreseeable victims of negligent conduct in the structure organization and control or lack of control of student activities." "The chilling effect of the towns [sic] actions have governed teachers in the real world of the Windsor school system to this date." The court may not conclude, based upon the information provided, that these statements are based upon the plaintiff's personal knowledge. While these paragraphs may state the plaintiff's personal beliefs, they do not state facts which would be admissible in evidence. Therefore, the Stoll affidavit does not establish a sufficient foundation for the plaintiff's personal knowledge with respect to the statements made in paragraphs eight through fourteen. Accordingly, the court grants the defendant's motion to strike paragraphs eight through fourteen of the Stoll affidavit, and those paragraphs will not be used to support the plaintiff's opposition to the defendant's motion for summary judgment.
The paragraphs at issue read as follows:
"8. As a teacher evaluated on a yearly basis for tenure and other required school evaluations my participation in PTO events affected my position as a teacher.
"9. The `No Drop OFF Policy['] is an informal non-written policy intended to motivate parents to participate in these events and for no other purpose.
"10. The school is not open to PTO events without the presence of a paid administrator, specifically on the date in question the principal Patricia Phelan. Mrs. Phelan had the keys to the building, and was responsible as the administrator for the building, and the safety and security of all persons who entered while under her care.
"11. As a quasi school official, I.E. teacher and the other teachers were identifiable persons to the administrator.
"12. I and the other teachers in the alternative were foreseeable victims of negligent conduct in the structure organization and control or lack of control of student activities.
"13. As a result of the town and Board of Education refusing to accept my injury in Workers' Compensation and for the purposes of civil liability I and the overwhelming majority of teachers who I represent as a union representative who had attended PTO events previous to my injury have declined to attend even one PTO event since that date.
"14. The chilling effect of the towns [sic] actions have governed teachers in the real world of the Windsor school system to this date."
MOTION FOR SUMMARY JUDGMENT
"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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Citations omitted.) Weiss v. Weiss, 297 Conn. 446, 457, 988 A.2d 766 (2010).
"A material fact is a fact that will make a difference in the outcome of the case." Byrne v. Burke, 112 Conn.App. 262, 267, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009). "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). The question of governmental immunity is a question of law and may be decided on a motion for summary judgment. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).
The defendant board argues that summary judgment should be granted as to count one of the complaint because the doctrine of governmental immunity bars the plaintiff's negligence claim against it. By contrast, the plaintiff argues that the "identifiable victim-imminent harm" exception to governmental immunity applies to permit her claim.
The defendant board also argues that summary judgment is warranted because it cannot be held liable in negligence as it did not have control over the dance, as a matter of law, to create a duty of care to the plaintiff. The court need not consider this latter argument, as the defendant's motion for summary judgment is resolved by the doctrine of governmental immunity.
The Connecticut Supreme Court has made clear that local boards of education, superintendents of schools and school principals are generally immune from liability for their governmental acts, e.g., Cotto v. Board of Education, 294 Conn. 265, 984 A.2d 58 (2009); Durrant v. Board of Education, 284 Conn. 91, 931 A.2d 859 (2007). "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . 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." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 167-68.
In the present case, the plaintiff concedes that the defendant's conduct was discretionary in nature. The defendant likewise maintains that the acts complained of are discretionary, and the evidence submitted to the court supports the defendant's assertion. Accordingly, the defendant is entitled to governmental immunity unless the plaintiff demonstrates that an exception applies. See Durrant v. Board of Education, supra, 284 Conn. 100 (As the plaintiff-mother "concede[d] that the defendants' conduct was discretionary, . . . she can prevail only if she falls within one of the delineated exceptions to governmental immunity"); Silano v. Board of Education, 52 Conn.Sup. 42, 62 (2011) ("While it is the defendant's burden to prove the defense of governmental immunity . . . it is the plaintiff's burden to prove an exception to that defense." [citations omitted]).
"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 . . . Under its common-law authority, the court recognized limited exceptions to the discretionary acts immunity . . . Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force." (Citations omitted; internal quotation marks omitted.) Durrant v. Board of Education, supra, 284 Conn. 106.
"The identifiable person-imminent harm exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . The exception 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 . . . By its own terms, this test requires three things: (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 . . . [T]he failure to establish any one of the three prongs precludes the application of the identifiable person-imminent harm exception." (Internal quotation marks omitted.) Swanson v. Groton, 116 Conn.App. 849, 859-60, 977 A.2d 738 (2009).
In the present case, the plaintiff argues that the identifiable victim-imminent harm exception should apply because "teachers are an identifiable class of persons intended to be beneficiaries of particular duties of care imposed on school officials [and] administrators." The defendant maintains that the plaintiff was not an identifiable person or a member of a class of identifiable persons potentially subject to imminent harm, and it was not apparent to any board of education employee that she was subject to the harm alleged.
With respect to the "identifiable victim" prong of the test, the identifiable victim-imminent harm exception applies "not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims . . . [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for 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 . . . In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous 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 . . . Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have also considered whether the legislature specifically designated an identifiable subclass as the intended beneficiaries of certain acts . . . whether the relationship was of a voluntary nature . . . the seriousness of the injury threatened . . . the duration of the threat of injury . . . and whether the persons at risk had the opportunity to protect themselves from harm." (Citations omitted; internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350-51, 984 A.2d 684 (2009). See also Durrant v. Board of Education, supra, 284 Conn. 100-01.
The Connecticut Supreme Court has held that the identifiable person-imminent harm exception applies to the claims of students injured while participating in classroom activities, at school and during school hours. See, e.g., Burns v. Board of Education, supra, 228 Conn. 640, 647-50, 638 A.21 1 (1994). The Court has barred liability, however, for injuries to non-students on school grounds. See, e.g., Cotto v. Board of Education, supra, 294 Conn. 265 (plaintiff, summer program director, was not identifiable person subject to imminent harm because potential for harm was not sufficiently immediate nor sufficiently certain); Durrant v. Board of Education, supra, 284 Conn. 91 (plaintiff parent that fell on puddle of water on staircase outside of child's public school was not a member of identifiable class of persons subject to imminent harm); Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005) (plaintiff parent attending child's public school athletic event was not within class of foreseeable victims for purposes of exception).
In Grady v. Somers, supra, 294 Conn. 324, the Court explained the narrow construction of the "identifiable victim" prong and its rationale in barring liability for injuries to non-students on school grounds: "In our recent decision in Durrant, we emphasized the narrowness of the class of persons who may be identified as foreseeable victims, and concluded that a six year old child present on school grounds to attend an after school day care program, and by association, his mother, who was injured when she fell on school grounds after she arrived to pick her child up, were not member[s] of an identifiable class of foreseeable victims subject to imminent harm for purposes of satisfying that exception to the qualified immunity of a municipal employee for discretionary acts . . . Assuming that the imminent harm requirement had been satisfied, we emphasized that [t]he only identifiable class of foreseeable victims that we 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 . . .
"Thus, we concluded in Durrant that the plaintiff was not a member of a narrowly defined class of foreseeable victims because she 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 school authorities pursuant to the Burns standards, despite the fact that our state statutes condone and even encourage 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." (Citations omitted; internal quotation marks omitted.) Grady v. Somers, supra, 294 Conn. 351-53.
In the present case, the plaintiff was not a student, but a teacher at the public school where the dance was held on March 9, 2007. The plaintiff was not instructed to attend the dance either as a teacher or as a chaperone. Teacher attendance at PTO sponsored events, such as the dance, was voluntary (Affidavit of Patricia Phelan, dated January 26, 2011). The plaintiff does not dispute that she was not required to attend the dance. The plaintiff's contracted hours of employment ended at 3:35p.m. on the day in question, and she was not paid to attend the dance. The dance took place after the end of school hours, beginning at approximately 5:30p.m., the time the plaintiff arrived at the school.
The plaintiff attended the dance in her capacity as a parent, accompanying her two sons, both of whom were students enrolled at the school. The plaintiff's children were not legally required to attend the dance. The dance itself was set up and organized by the PTO, not by the defendant board. Because children attending the event had to be accompanied by a parent or guardian, no chaperones were provided. The plaintiff does not dispute that parents and guardians were responsible for the supervision of their own children at the dance. The plaintiff was a member of the PTO and also volunteered at the dance, serving pizza to the students.
There exists no genuine issue of material fact as to whether the plaintiff was an "identifiable victim" for purposes of the identifiable person-imminent harm exception. The pleadings, affidavits and other admissible proof submitted by the parties establish that the plaintiff's attendance at the dance was "entirely voluntary," and so did not impose an additional duty of care upon the defendant. See Grady v. Somers, supra, 294 Conn. 352.
The plaintiff's attempt to conflate her role as a parent attending the dance with her job teaching at the school falls short, because of the undisputed fact that the plaintiff was not required to be at the school dance. Because the plaintiff "was not a member of a narrowly defined class of foreseeable victims"; Grady v. Somers, supra, 352; the identifiable person-imminent harm exception does not apply and the plaintiff's negligence claim is barred by the doctrine of governmental immunity. Accordingly, the defendant is entitled to judgment as a matter of law.
The court notes that it did not consider claims made by the plaintiff in paragraphs eight through fourteen of her affidavit (Plaintiff's Exhibit A), pursuant to its ruling on the motion to strike.
CONCLUSION
For the foregoing reasons, the court hereby grants the defendant's motion to strike paragraphs eight through fourteen of the Stoll affidavit, and the defendant's motion for summary judgment.