Opinion
CV186011557S
06-28-2019
Hani TELAWI PPA Mustafa Telawi v. Leon MITCHELL et al.
UNPUBLISHED OPINION
OPINION
Nada K. Sizemore, Judge
By Complaint dated November 27, 2017, returnable on January 9, 2018, the minor Plaintiff Hani Telawi through his father and next friend Mustafa Telawi, brings suit via a six-count complaint as a result of an incident on February 15, 2017, at the Helen Street School located in Hamden, Connecticut.
Plaintiff alleges that the minor child suffered injuries and losses when an American Bulldog named "Candy" suddenly and without warning entered his school and attacked him. He claims injuries as follows: lacerations; puncture wounds and abrasions to the right knee; right knee pain; lacerations puncture wounds and abrasions to the right leg; right leg pain; scarring; fear of disease; fear and emotional distress and pain and suffering, both mental and physical. He seeks recovery for the medical care and treatment expenses, both past and future, and further claims that he was and is unable to participate and enjoy his usual activities.
Specifically, he has sued the Defendant Leon Mitchell as owner and keeper of the dog, in the First and Second Counts of the Complaint, asserting liability under the dog bite statute, General Statutes § 22-357 and common-law negligence theories. He also has sued the Defendants Michael Lorenzo as principal of Helen Street School; the Town of Hamden; and the Hamden Board of Education in the Third, Fourth, Fifth and Sixth Counts of the complaint.
In the Third Count, he claims that Defendant Principal Lorenzo and his agents, servant and/or employees, were responsible for the claimed injuries and losses as he failed to close and/or lock the school door during school hours as a breach of his ministerial duties.
Specifically, he alleges that the Defendant Lorenzo and his agents, servants and/or employees were negligent as follows: (a) they failed to supervise the minor plaintiff; (b) they failed to enact and/or follow adequate procedures to ensure that the students were properly supervised; (c) they failed to properly train their agents, servants and/or employees to supervise the students; (d) they failed to safeguard the students; (e) they failed to enact and/or follow adequate procedures to ensure that the students were properly safeguarded; (f) they failed to properly train their agents, servants, and/or employees to safeguard students; (g) they failed to properly secure the door during school hours; (h) they allowed the door to remain open and/or unlocked during school hours; (i) they knew or should have known that the door was open and/or unguarded, but failed to remedy same; (j) they failed to enact and/or follow adequate procedures to ensure that the door remained closed and/or locked during school hours; (k) they failed to properly train their agents, servants, and/or employees to keep the door closed and/or locked during school hours; (l) they allowed a dog to enter the school through an open door; (m) they allowed a dog to remain on the premises unleased or unrestrained for an unreasonable period of time; (n) they knew or should have known that there was an unleashed dog on the premises, but failed to contain, restrain or remove it in a timely manner; and/or (o) they failed to warn the minor plaintiff that the dog was in the school.
In the Fourth Count, he sued the Town of Hamden under General Statutes § 7-465 restating the allegations of the Third Count and alleging that the Town was liable to the plaintiff as Defendant Lorenzo was acting as an agent, servant or employee of the Town of Hamden. And in the Fifth Count, he sued the Town of Hamden pursuant to General Statutes § 52-557n arguing that the Town was liable as the minor Plaintiff Hani Telawi was an identified victim subject to imminent harm as a results of the failure to close and/or lock the school door.
Last, in the Sixth Count, he sued the Hamden Board of Education under General Statutes § 10-220 restating the allegations in the Third Count. Plaintiff further claims that the Board of Education failed to provide a safe school setting.
By Answer and Special Defenses dated June 18, 2018, the Defendants Town of Hamden, Board of Education and Lorenzo generally denied all claims of negligence and denied causing the Plaintiffs’ claimed injuries and losses and accident. They further admitted that the dog entered the school on February 15, 2017. In two special defenses, the Defendants claim that some or all of the allegations of the Plaintiff’s complaint are barred by qualified governmental immunity and by applicable provisions of General Statutes § 52-557n.
The Plaintiff replied to said defenses on July 9, 2018, so pleadings are closed.
By Motion for Summary Judgment dated March 19, 2019 (Docket Entry #114) and supporting Exhibits (Docket Entry #115) and Memorandum in Response to Plaintiff’s Objection dated June 10, 2019 (Docket Entry #118), the defendants move for summary judgment under Practice Book § 17-35 et seq., as to the Third, Fourth, Fifth and Sixth Counts of the complaint. The Plaintiff has objected to the Motion by Objection dated June 6, 2019 (Docket Entry #117).
The Defendants have submitted two affidavits in support of the Motion for Summary Judgment: (1) Affidavit dated March 15, 2019 of Kevin Kiley [teacher who was at front door on date of incident], and (2) Affidavit dated March 15, 2019 of Elizabeth Capone [teacher inside school hallway on date of incident who witnessed the incident].
The Plaintiff has submitted excerpts from the deposition transcript of Mustafa Telawi taken on July 25, 2018. Plaintiff father did not witness the incident nor was he present at school that day; instead he testifies that he learned from others that the children were playing with the dog in the school hallway just prior to the incident.
The matter comes to this court after oral argument at the June 11, 2019 short calendar.
Summary Judgment Generally
Under Practice Book § 17-49 et seq., "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 the moving party is entitled to judgment as a matter of law ... In deciding a motion for summary judgment, the [Court] must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 221 (2016).
"Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Once the moving party has met its burden ... 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.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
Governmental Immunity
I- Discretionary vs. Ministerial
"[U]nder General Statutes § 52-557n, a municipality may be liable for the negligent acts or omissions of a municipal officer acting within the scope of his or her employment or official duties ... The determining factor is whether the act or omission was ministerial or discretionary ... [Section] 52-557n(a)(2)(B) ... explicitly shields a municipality from liability for damages to person or property caused by the 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 ... 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 ...
"Discretionary acts are treated differently from ministerial 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 ... [D]iscretionary act immunity reflects a value judgment that- despite injury to a member of the public- the broader interest in having government officials 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." (Citations omitted; internal quotation marks omitted.) Hull v. Newtown, 327 Conn. 402, 407-08, 174 A.3d 174 (2017). "The hallmark of a discretionary act is that it requires the exercise of judgment ... If by statute or other rule of law the official’s duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance ... [M]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Mills v. Solution, LLC, 138 Conn.App. 40, 48, 50 A.3d 381 (2012).
Whether a ministerial duty exists is a question of law to be resolved by the court. Ventura v. East Haven, 330 Conn. 613, 634, 199 A.3d 1 (2019). "[T]o demonstrate the existence of a ministerial duty on the part of a municipality and its agents, a plaintiff ordinarily must point to some statute, city charter provision, ordinance, regulation, rule, policy, or other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion." (Internal quotation marks omitted.) Id.
Our Supreme Court has recognized that managing and supervising school employees is a discretionary duty. Strycharz v. Cady, 323 Conn. 548, 569, 143 A.3d 1011 (2016). "Although no Connecticut appellate tribunal has had an opportunity to examine whether general supervision of employees in a public school setting is a discretionary or ministerial function, several of our sister states have concluded that supervision of school personnel is a discretionary function ... In addition, both state and federal courts that have considered the issue in a different municipal or governmental setting also have concluded that general employee supervision is a discretionary function ... We agree with the rationale expressed in the foregoing cases. Furthermore, it is axiomatic that public school administrators perform a difficult ... and ... vitally important job in our society ... Because of the vital importance of their function to society, school administrators undoubtedly must be accorded substantial discretion to oversee properly their myriad responsibilities." (Citations omitted; internal quotation marks omitted.) Id., 567-69.
Similarly, several Connecticut trial courts have held that the supervision of students is generally considered a discretionary act. See, e.g., Rigoli v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5007920-S (February 6, 2012, Hiller, J.) (53 Conn.L.Rptr. 466, 467) ("[w]hen presented with the issues of supervision of students, implementation of school policies and the control and management of a school and its students, Superior Courts have generally held that these ... [duties] are carried out through discretionary acts"); Romanella v. Nielson, Superior Court, judicial district of New London, Docket No. CV-06-5100163-S (May 27, 2009, Abrams, J.) ("Connecticut law ... considers the supervision of students a discretionary act"); LaPerle v. Woodstock Academy, Superior Court, judicial district of Windham, Docket No. CV- 06-5000370-S (June 5, 2007, Martin, J.) (43 Conn.L.Rptr. 531, 532) ("[t]he duty of a [town board of education] to supervise students is discretionary rather than ministerial").
Therefore, in applying the above case law and statutes to the case at bar, this court finds the duties of the defendants in question are discretionary and not ministerial as argued by the Plaintiff. The supervision of the entry areas to the school are clearly acts that fit with the discretionary actions described in the other school liability cases. The plaintiff cites no statute, ordinance, policy or other rule mandating the action of monitoring the front entry way to school. See Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010) ("for 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"). Supervision of entry areas is no different than the general supervision with school grounds on a daily basis- such tasks require the utmost discretion. See Strycharz v. Cady, supra, 323 Conn. 567-69.
With the conclusion that the actions are discretionary, the court must now analyze if any of the recognized exceptions to governmental immunity become operative.
II- Identifiable Victim-Imminent Harm Exception
The Connecticut courts have recognized three exceptions to discretionary act immunity, but only one is relevant to this action: the identifiable person, imminent harm exception. "The exception requires three elements: (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 ... [Our Supreme Court] [has] stated previously that this exception to the general rule of governmental immunity has received very limited recognition in this state ... If the plaintiff fails to establish any one of the three prongs, this failure will be fatal to his claim that he comes within the imminent harm exception." (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 435, 165 A.3d 148 (2017); Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994).
"Liability for a municipality’s discretionary act is not precluded when (1) the alleged conduct involves malice, wantonness or intent to injury; (2) a statute provides for a cause of action against the municipality or municipal official for failure to enforce certain laws; or (3) the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject to an identifiable person to imminent harm ..." (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 434 n.13, 165 A.3d 148 (2017).
"[T]he 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." (Internal quotation marks omitted.) Martinez v. New Haven, 328 Conn. 1, 9, 176 A.3d 531 (2018). This standard focuses not "on the duration of the alleged dangerous condition, but on the magnitude of the risk that the condition created." (Emphasis in original.) Id., 322. A harm is not imminent if it "could have occurred at any future time or not at all." Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989). "[T]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." (Internal quotation marks omitted.) Id.
In the case at bar, the court finds that Plaintiff is able to establish that the minor child was an identifiable victim, as the Connecticut courts have already recognized that a child in a public school setting is in that category as a foreseeable identified person. See St. Pierre v. Plainfield, supra, 326 Conn. 436 ("[t]he only identifiable class of foreseeable victims that [our Supreme Court] [has] recognized ... is that of schoolchildren attending public schools during school hours" [internal quotation marks omitted]).
This court finds, however, that the Plaintiff cannot readily meet the other two exceptions identified by the Connecticut courts- imminent harm or apparentness on behalf of the public official in order to sustain this action.
"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 ... Imposing such a requirement on government officials would run counter to the policy goal underlying all discretionary act immunity, that is, keeping public officials unafraid to exercise judgment." (Citations omitted; footnote omitted; internal quotation marks omitted.) Edgerton v. Clinton, 311 Conn. 217, 231-32, 86 A.3d 437 (2014).
Plaintiff argues that the Defendants can still be held liable because of the imminent harm exception. Under the imminent harm exception, the Defendant can be found liable despite the discretionary acts if "the circumstances make it apparent to the public officer that his or her failure to act would likely subject an identifiable person to imminent harm." Haynes v. Middletown, 314 Conn. 303, 312-13, 101 A.3d 249 (2014).
The standard for imminent harm is explicitly stated in Haynes to be whether the danger "was apparent to the municipal [employee] that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent harm." Haynes, 314 Conn. at 323. In Haynes, a young student was roughhousing with other students when he was pushed into a jagged locker, resulting in an injury to the young student. Id. at 306. The administration had known of the dangerous locker prior to the incident occurring, and had not yet rectified the situation. Id. at 306. The court held that the jury could reasonably concluded that the evidence of the locker, combined with the ongoing issue of "horseplay" among students, could create a duty to act to immediately prevent harm.
In contrast, the case at bar does not present with any admissible facts that would give reason to believe there was a clear unequivocal duty to act by school officials. The evidence presented by all parties on the Motion for Summary Judgment does not contain any report of an ongoing complaint of a dog being reported on or near the premises. Similarly, there was no indication that leaving the door open with a faculty member monitoring the entry door, and another supervising the hallway areas, presented an issue of such imminent danger.
Indeed, there was no evidence presented to support a claim that a dog suddenly leaving a car outside the school and bolting into the school was a foreseeable harm, let alone a harm that posed a risk of such magnitude that the defendants had an unequivocal duty to act immediately See Brooks v. Powers, 328 Conn. 256, 274 n.11, 178 A.3d 366 (2018) ("significantly higher degree of risk is needed to establish imminent harm than to establish foreseeable harm in ordinary negligence case"). Therefore, this court cannot conclude that there was imminent harm or apparentness so as to fit this case into one of the recognized exceptions. Further, the deposition transcript presented by the Plaintiff does not provide admissible evidence to sufficiently controvert any of the facts put for by the defense as required by Practice Book § 17-49 et seq. In the deposition excerpt, the Plaintiff father testified to much hearsay information and he was not even present at the school at the day and time of the incident.
CONCLUSION
In conclusion, based on the above analysis, this court is GRANTING the Motion for Summary Judgment in favor of the Defendants Michael Lorenzo, Town of Hamden and Hamden Board of Education and OVERRULING the Plaintiff’s Objection to the Motion.
The court therefore finds that these defendants are entitled to judgment as a matter of law, and that there are no genuine issues of material fact, per Practice Book § 17-49, et seq.