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Giard v. Putnam

Connecticut Superior Court Judicial District of Windham at Putnam
Dec 3, 2008
2008 Ct. Sup. 19171 (Conn. Super. Ct. 2008)

Summary

In Giard v. Putnam, supra, (46 Conn. L. Rptr. 782), the plaintiffs filed a complaint alleging negligence against nine defendants, including the town of Putnam board of education (board).

Summary of this case from Doe v. Town of Madison

Opinion

No. CV 08 5002754 S

December 3, 2008


MEMORANDUM OF DECISION


FACTS

This cases arises out of the suicide of a Putnam High School senior, Michael Giard (decedent). On March 24, 2008, the plaintiffs; the estate of Michael Giard (estate); his parents, Caryn Casey (Mrs. Casey); and Mark Casey (Mr. Casey) commenced this action by service of process against the defendants; the town of Putnam (town); the board of education of the town of Putnam (board); Margo Marvin, the superintendent of the Putnam school system; Linda Joyal, the principal of Putnam High School; and Eileen Blair, a guidance counselor at Putnam High School, both in her official and individual capacities.

The complaint contains nine counts, all of which are relevant to the pending motion. In counts one through five, the estate alleges negligence against the town, the board, Marvin, Joyal, and Blair in her official capacity, respectively. In counts six and seven, Mrs. Casey and Mr. Casey, respectively, allege negligent infliction of emotional distress against Blair in her official capacity. Finally, in counts eight and nine, Mrs. and Mr. Casey, respectively, allege intentional infliction of emotional distress against Blair in her individual capacity. The prayer for relief asks for money damages.

The estate alleges facts relevant to counts one through five in the complaint as follows. The board, Marvin, Joyal and Blair are agents of the town, and are jointly responsible, along with the town, for the welfare of the students at Putnam High School. At some point during the school day, shortly before the decedent committed suicide, he expressed an intention to harm or kill himself in the presence of the defendants or their agents. No defendant or agent took any action to warn Mr. or Mrs. Casey or to counsel or protect the decedent. On March 26, 2006, the decedent committed suicide at 10:30 at night. He was pronounced dead at approximately 8:15 the next morning due to methadone toxicity. The failure of the defendants to take steps to prevent the decedent's suicide constitutes a breach of their duty to take reasonable actions to prevent suicide by students. Finally, the estate alleges that the decedent was an identifiable victim subject to imminent harm and his suicide would have been preventable if the defendants had used reasonable care in discharging their duty.

The estate further alleges that all the defendants were negligent in the following ways. (1) The defendants failed to adequately train their agents about suicide prevention; (2) they failed to adequately train their agents to identify risk factors for suicide; (3) they failed to ensure that their agents knew how to act when confronted with a suicidal student; (4) they failed to include suicide prevention in the school curriculum; (5) they failed to adopt a written policy and protocols regarding suicide prevention; (6) they failed to make suicide prevention resources available and to provide opportunities for students and parents to use them; (7) they failed to adopt proper policies requiring notification of parents of suicidal students; (8) they failed to adequately supervise their employees and students; and (9) they hired a guidance counselor who did not know how to properly respond to a threat of suicide.

The estate alleges that Blair was further negligent in failing to follow Putnam High School suicide prevention protocols when confronted with information that the decedent was suicidal, especially the policy requiring her to notify a student's parents when there is a threat of suicide. It also alleges that Blair failed to exercise reasonable care in her capacity as guidance counselor by failing to take action to prevent the decedent's suicide.

The plaintiffs Mrs. and Mr. Casey allege facts relevant to counts six and seven as follows. Blair's failure to take action to prevent the decedent's suicide caused Mrs. and Mr. Casey to suffer severe emotional distress when they found the decedent's lifeless body. As a consequence of this distress, both Mrs. and Mr. Casey require medical treatment. Blair should have known that her failure to take proper action to prevent the decedent's suicide presented an unreasonable risk of emotional distress to Mrs. and Mr. Casey.

Mrs. and Mr. Casey allege facts relevant to counts eight and nine as follows. Blair failed to take reasonable action to prevent the decedent's suicide. She failed to comply with policies regarding reporting of suicide threats. She should have known that her nonfeasance would likely cause severe emotional distress. Her conduct was extreme and outrageous. As a proximate result of her nonfeasance, Blair caused severe emotional distress to Mrs. and Mr. Casey when they discovered their son's dead body. As a result of such distress, they required and will continue to require medical treatment.

On June 11, 2008, the defendants jointly filed a motion to strike and a memorandum of law therewith. The motion seeks to strike counts one through nine on three grounds — (1) the plaintiffs have failed to allege that the asserted negligent conduct proximately caused the decedent's suicide, (2) the defendants are entitled to governmental immunity under General Statutes §§ 52-557n(a)(2)(B) and 52-557n(b)(6) for their alleged negligent conduct, and (3) Mrs. and Mr. Casey have failed to allege, with respect to counts eight and nine, that the defendant Blair's conduct was extreme and outrageous. The plaintiffs filed a joint memorandum in objection to the motion to strike on July 28, 2008. On August 1, 2008, the defendants filed a joint reply memorandum. The motion was heard on the short calendar on August 18, 2008.

DISCUSSION

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994).

The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).

As a general rule, the defense of governmental immunity cannot be addressed in a motion to strike because "governmental immunity must be raised as a special defense in the defendant's pleadings . . . Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).

In its motion to strike, the defendants first assert that the decedent's act of suicide was an unforeseeable intentional act that defeats the element of proximate cause in the estate's negligence claim. They claim that this logic follows the general rule in Connecticut on the foreseeability of suicide with a narrow exception to cases involving physicians and patients. The plaintiffs claim that not withstanding the general rule, this suicide was foreseeable.

Second, the defendants assert that governmental immunity under General Statutes §§ 52-557n(a)(2)(B) and 52-557n(b)(6) applies. They claim that all the claimed acts of negligence are discretionary acts for which the defendants are immune and that, as a matter of law, the decedent was not in an identified class of foreseeable victims — meaning that that exception to immunity does not apply. Furthermore, they claim that since the decedent caused his own death, the defendants have a second ground for immunity because the harm was not proximately caused by the defendants or their agents.

The plaintiffs reply that the board's failure to adopt an anti-suicide policy, as required by General Statutes § 10-221(e), did not involve discretion. Furthermore, the plaintiffs claim that the identifiable person/imminent harm exception applies because the threat of suicide was foreseeable to school officials during school hours. The plaintiffs also claim that, since the decedent's suicide was foreseeable, the actions of the defendants' agents did proximately cause his death, and the defendants' second ground of immunity does not apply.

Third, the defendants claim that a failure to act on information that a student is suicidal is not extreme or outrageous as a matter of law. The plaintiffs counter that Blair owed Mrs. and Mr. Casey a duty to protect their son and her nonfeasance in response to the threat of suicide was extreme and outrageous.

As a preliminary matter, this memorandum addresses the plaintiffs' request to "more fully develop the factual record." (Plaintiffs' Objection, p. 6.) The plaintiff requests that the court deny the motion to strike so that it can "plead facts . . . establishing matters in avoidance of a special defense. See Practice Book § 10-57." (Plaintiffs' Objection, p. 6.) The plaintiffs assert that they need to develop the record for two reasons: "[First,] to further illustrate the fact that [the decedent] was a foreseeable victim subject to imminent harm, and [second, to further illustrate] that the defendants' nonfeasance not only increased the risk of his harm, but was also a substantial factor in the cause of his death." (Plaintiffs' Objection, p. 7.)

The plaintiffs are correct that Connecticut courts will deny a motion to strike in which a defense of governmental immunity is interposed if a plaintiff argues the need to develop the factual record. See Violano v. Fernandez, supra, 280 Conn. 325-26. However, the plaintiffs have failed to demonstrate that there is a need to further develop the record.

First, for the reasons stated below in part I, the decedent was not, as a matter of law, within an identified class of foreseeable victims. To obtain a different result, the plaintiffs would need to plead facts inconsistent with those already pleaded. In other words, no amount of factual clarification would change the court's determination. See part I, infra.

In terms of the plaintiffs' second reason to develop the record, factual development is unnecessary to the resolution of this case. For counts one, three, four and five, the issue of whether the defendants' conduct was a substantial factor in causing the suicide does not need to be resolved because the motion is decided on other grounds. For count two, this memorandum favors the plaintiffs' position, even without further factual pleading. Finally, whether the defendants' misconduct is the proximate cause of the decedent's suicide is irrelevant to counts six, seven, eight and nine.

COUNT ONE — NEGLIGENCE CLAIM BY THE ESTATE AGAINST THE TOWN

In count one the estate alleges negligence against the town. The town is immune from suit because of General Statutes § 52-557n(a)(2)(B). At common law, a municipality generally had immunity from liability for its torts. Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005). The legislature abrogated this common-law immunity by enacting § 52-557n. Id., 47-48. Section 52-557n(a)(1) 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 . . ."

However, there are exceptions to this municipal liability, including § 52-557n(a)(2)(B), which 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 . . . negligent acts or omissions [that] require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."

In other words, a municipality is immune from its acts or the acts of its employees that are discretionary, or governmental, in nature. Martel v. Metropolitan District Commission, supra, 275 Conn. 48. However, there is no immunity for ministerial acts, which are acts that are "to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Id., 49. "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." (Citation omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).

Here, it is apparent from the complaint that all of the allegations against the town must be deemed to be of discretionary acts. Many of the allegations of negligence refer to the town's failure to perform a task adequately or properly. The act of performing a task reasonably, properly or adequately involves the exercise of discretion and is not considered ministerial. Segreto v. Bristol, 71 Conn.App. 844, 857, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002); see also Violano v. Fernandez, supra, 280 Conn. 323 (court determined that the municipal officer's duty to "reasonably [and] adequately secure [the plaintiff's] property that was under his care, custody and control" was discretionary); Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989) ("While an inspection by definition involves a checking or testing of an individual against established standards . . . what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment." (Citation omitted; internal quotation marks omitted.)).

As to the remaining acts, it is apparent from the complaint that the estate has alleged no directive or written policy mandating that the town perform the acts described and mandating how it is to perform them. To properly allege the existence of a ministerial duty, a plaintiff must allege that "[the defendant] was required to perform in a [prescribed] manner and failed to do so." See Colon v. Board of Education, 60 Conn.App. 178, 182, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). That is, there must be "a written policy, directive or guidelines" mandating a particular course of action. Cobuzzi v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 05 4007167 (May 23, 2007, Prestley, J.). For example, in Kolaniak v. Board of Education, 28 Conn.App. 277, 281-82, 610 A.2d 193 (1992), the court deemed the duty of the maintenance staff to keep the sidewalks free from snow and ice to be ministerial because there was a directive from the "policymaking board of education" to do so. On the contrary, in Colon v. Board of Education, supra, 179, 183, a teacher's act of opening a door in a way that injured a student was considered discretionary because the plaintiff failed to prove that there was a directive regulating the manner by which teachers are to open doors.

The only statute imposing a mandatory duty mentioned by the plaintiff in count one is General Statutes § 10-221(e), which imposes a duty on a town's board of education, but not upon the town itself. Section 10-221(e) provides in relevant part: " [E]ach local and regional board of education shall adopt a written policy and procedures for dealing with youth suicide prevention and youth suicide attempts." (Emphasis added.) The plaintiff has not established that the town has any duty to ensure that the board has adopted such a policy. Furthermore, when state law mandates an action by town employees, they are agents of the state and not the town in performing those duties; Antalik v. Board of Education, Superior Court, judicial district of Litchfield, Docket No CV 075001762 (August 13, 2008, Gallagher, J.) (46 Conn. L. Rptr. 179); and the town is not liable for their torts. See, e.g., Hartwell v. Town of New Milford, 50 Conn. 522, 522, 524-25 (1883) (town not liable when town treasurer failed to follow state-mandated duty to pay a bounty to children of Civil War veterans).

A municipality may nonetheless be held liable for the discretionary acts of itself or its agents or employees if the discretionary conduct falls within one of three exceptions: "[F]irst, where 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 . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted.) Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). There is no assertion in the estate's objection that asserts the application of the second or third exception. The only issue is whether the first exception applies.

The decedent did not fall in a class of identifiable persons subject to imminent harm. Schoolchildren, while compelled to be at school, during school hours, can comprise such a class. Durrant v. Board of Education, 284 Conn. 91, 107, 931 A.2d 859 (2007). However, the Connecticut Supreme Court has also held, in dicta, that schoolchildren, while voluntarily at school for an after-school program, do not fall within an identified class of foreseeable victims. Id., 104 (in reversing the Appellate Court's ruling that a parent who was injured when she came to pick her child up from an after-school activity could recover, the court noted that the Appellate Court's reasoning was based on the faulty assumption that the child could himself have recovered if he were injured under those circumstances). The rationale for this distinction is that there is no special duty of care imposed upon school officials when persons are at school voluntarily, unlike when they are compelled to be there. Id., 108.

The dicta found in Durrant was followed in Lowenadler v. Mallard, Superior Court, judicial district of Danbury, Docket No. CV 08 5004054 (July 22, 2008, Shaban, J.). In Lowenadler, a schoolchild was injured while voluntarily participating in an after-school basketball program. The court cited Durrant in holding that the child was not within an identifiable class of foreseeable victims because he was not compelled to be at the game. See id.

In the present case, the decedent's suicide occurred at 10:30 at night, according to the complaint — a time when he was not required to be at school. See id. ("At oral argument, the plaintiff conceded the injury occurred after school. Consequently, the plaintiff is not a member of an identifiable class of foreseeable victims."). The town had no special duty to prevent the decedent's suicide after school hours. See Durrant v. Board of Education, 284 Conn. 108. Thus, as a matter of law, the decedent was not within an identifiable class of foreseeable victims. Consequently, this narrow exception does not apply.

No amount of factual clarification would compel a different result. The estate has already pleaded that the suicide was attempted at 10:30 at night. The town could not be held liable for a suicide that occurred at a time when the decedent was not required to be at school, no matter what else is reasonably pleaded. Thus there is no need to develop the factual record, and the motion to strike count one is granted.

II COUNT TWO — NEGLIGENCE CLAIM BY THE ESTATE AGAINST THE BOARD A Governmental Immunity Under General Statutes § 52-557n(a)(2)(B)

In count two, the estate alleges negligence against the board. General Statutes § 52-557n may be applied to immunize a board of education just as it could a municipality itself. See O'Connor v. Board of Education, 90 Conn.App. 59, 66, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005); Gaizler v. Pagani, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 054004807 (May 24, 2007, Tobin, J.T.R.) (43 Conn. L. Rptr. 518).

The board is immune from all allegations of negligence in count two except for that in subparagraph 23(e). Each allegation of negligence in count two was also alleged in count one against the town. For the same reasons as articulated in part I, it is apparent from the complaint that all allegations except for that in subparagraph 23(e) are of discretionary acts, and no exception to immunity for discretionary acts applies.

As to the allegation in subparagraph 23(e), there is no governmental immunity under § 52-557n(a)(2)(B) because that allegation describes an act that is ministerial as a matter of law. The estate has alleged therein that the "defendant failed to adopt . . . a written policy and procedure for dealing with youth suicide prevention and youth suicide attempts . . ." (Complaint, count two, ¶ 23(e).) The estate has also alleged, in paragraph four of count two, that General Statutes § 10-221(e) requires the adoption of such a policy by all boards of education in the state.

The total failure to discharge a required duty is considered a ministerial act not subject to immunity. See Soderlund v. Merrigan, 110 Conn.App. 389, 397, 955 A.2d 107 (2008) (police officer's complete failure to obey a court order to vacate an arrest warrant was considered a ministerial act because the order was "mandatory"). There is no discretion not to perform a required act, even if the manner of performing the required act could involve discretion. See Estate of Foster v. Branford, complex litigation docket at Waterbury, Docket No. X10 CV 05 4010120 (January 29, 2007, Munro, J.) (42 Conn. L. Rptr. 852) ("[T]he duty to provide training and to establish police procedures is ministerial, how training and establishing police procedures is discharged is discretionary.").

The estate does not allege that the board adopted an inadequate policy or procedure. It alleges that the board failed altogether to adopt any policy or procedure regarding suicide prevention as it was required by state law to do. If these allegations are true, then the board could be held liable for negligence in performing this ministerial act. It had no discretion not to adopt some policy or procedure. Thus, § 52-557n(a)(2)(B) does not bar liability for the alleged act complained of in subparagraph 23 (e) of count two.

B Governmental Immunity under General Statues § 52-557n(b)(6)

The board also asserts that it is immune from liability under General Statues § 52-557n(b)(6), which provides: "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 . . . (6) the act or omission of someone other than an employee, officer or agent of the political subdivision . . ." This immunity provision only applies if no municipal body or municipal employee proximately caused the injury of which the plaintiff has complained. See Elliot v. Waterbury, 245 Conn. 385, 394-409, 715 A.2d 27 (1998) (the court analyzed § 52-557n(b)(6) and determined that it did not require that a plaintiff show a heightened standard of causation with respect to a municipality or a municipal employee to avoid immunity); Alexander v. Vernon, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0078935 (May 3, 2004, Sferrazza, J.) ("[Section] 52-557n(b)(6) codifies the common-law requirement of proximate causation before liability can attach."). The board has also asserted that the estate has no cause of action for negligence because it has failed to allege the element of proximate cause. For the reasons stated below in part II C, the board is not immune from liability under § 52-557n(b)(6) because the estate has properly alleged that the board's conduct was a proximate cause of the decedent's suicide.

C Proximate Cause

In its motion to strike, the board alleges that "because the act of suicide is a deliberate and intentional act, [it is] relieved from any [careless conduct] for which [it] may be responsible . . ." (Motion to Strike, p. 1.) In order to state a cause of action for negligence, a plaintiff must allege sufficient facts to establish the required elements of duty, breach, actual causation, proximate causation and damages. See Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 32, 946 A.2d 839 (2008). The estate has alleged sufficient facts to satisfy the element of proximate cause.

"The test of proximate cause is whether the defendant's conduct is a `substantial factor' in producing the plaintiff's injury." Craig v. Driscoll, 262 Conn. 312, 331, 813 A.2d 1003 (2003). In determining whether something is a substantial factor in producing harm, the court must ask "whether the harm [that] occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 656, 904 A.2d 149 (2006).

The board correctly notes that the general rule in Connecticut is that "negligence actions seeking damages for the suicide of another will not lie because the act of suicide is considered a deliberate, intentional and intervening act [that] precludes a finding that a given defendant, in fact, is responsible for the harm." Edwards v. Tardif, 240 Conn. 610, 615, 692 A.2d 1266 (1997).

The one remaining allegation against the board states that it "failed to adopt . . . a written policy and procedure for dealing with youth suicide prevention and youth suicide attempts . . ."; (Complaint, count two, ¶ 23(e)); in derogation of its duty under General Statutes § 10-221(e). Section 10-221(e) provides in relevant part: "Not later than July 1, 1990, each local and regional board of education shall adopt a written policy and procedures for dealing with youth suicide prevention and youth suicide attempts." From the face of the statute it can be determined that the purpose of the directive is to require school boards to take action to minimize incidents of preventable suicide among public schoolchildren. It is therefore foreseeable that the failure to adopt such a policy or such procedures specifically mandated by § 10-221(e) may lead to occurrences of suicide that the existence of proper policies and procedures may have prevented. In other words, suicides are within the scope of the risk created by the board's alleged negligent failure to adopt any suicide-prevention policies. The estate has alleged sufficient facts to find that the element of proximate cause is satisfied with respect to the claims founded on § 10-221(e). The motion to strike is denied as to count two.

III COUNTS THREE AND FOUR — NEGLIGENCE CLAIMS BY THE ESTATE AGAINST MARVIN AND JOYAL, IN THEIR OFFICIAL CAPACITIES

Counts three and four allege identical negligence claims against Marvin, the Putnam school superintendent, and Joyal, the principal of Putnam High School, respectively. When a municipal employee is sued in his or her official capacity, "the suit is, in effect, a suit against the municipality and the individual defendants are entitled to the protection of the municipality's immunity." Hadden v. Southern New England Telephone Co., Superior Court, complex litigation docket at Waterbury, Docket Nos. X06 CV 03 0183016, X06 CV 03 0183017 (August 18, 2004, Alander, J.); see also Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The Connecticut Supreme Court, in a line of cases, has equated common-law governmental immunity for municipal employees with the immunity articulated in § 52-557n(a)(2)(B). See Martel v. Metropolitan District Commission, supra, 275 Conn. 48; Elliot v. Waterbury, supra, 245 Conn. 410-11. Thus, both Marvin and Joyal may be immune from liability for their alleged acts of negligence.

Each act alleged in counts three and four must be deemed discretionary as a matter of law. It is apparent from the complaint that the plaintiff has not alleged that either defendant "was required to perform in a [prescribed] manner and failed to do so"; Colon v. Board of Education, supra, 60 Conn.App. 182; or that there was any "written policy, directive or guidelines" mandating that they take a particular course of action. Cobuzzi v. New Britain, supra, Superior Court, Docket No. CV 05 4007167. Without such allegations, one can only conclude that the defendants had discretion to perform, and in the means of performing, each alleged act. For the reasons stated in part I, no exception to immunity for discretionary acts applies in this case. The motion to strike counts three and four is granted.

IV COUNT FIVE — NEGLIGENCE CLAIM BY THE ESTATE AGAINST BLAIR, IN HER OFFICIAL CAPACITY

Count five alleges negligence against the defendant Blair in her official capacity. Since Blair is sued as a municipal employee, she may be eligible for governmental immunity under General Statutes § 52-557n. See Hadden v. Southern New England Telephone Co., supra, Superior Court, Docket Nos. X06 CV 03 0183016, X06 CV 03 0183017; part III. For the reasons stated in part I, each alleged act is discretionary as a matter of law, except for the acts alleged in subparagraph 25(f). To those discretionary acts, governmental immunity applies under § 52-557n(a)(2)(B) and no exception to governmental immunity for discretionary acts applies. See part I.

Subparagraph 25(f) of count five of the complaint provides: "[Blair was negligent] in that, upon information and belief, [she] failed to comply with policies and procedures [that] require high school personnel to notify parents [or] guardians when a student threatens [or] attempts suicide." The estate also alleges in paragraph thirteen of count five, incorporated by reference from count one, that "the defendant Blair . . . received information that [the decedent] was suicidal [or] had threatened to kill himself, yet she did nothing to notify or warn [his] parents of his pending suicide." (Emphasis added.)

While subparagraph 25(f) describes a mandatory duty to report a threat of suicide, and the estate also alleges that Blair failed to report, the estate has failed to allege facts and circumstances that, if proven, would demonstrate that Blair was under a duty to report pursuant to the alleged policy. Thus, her alleged failure to report, under the circumstances, was an act of discretion.

Without pleading the existence of a duty compelling a municipal defendant to act a certain way under the circumstances, the plaintiff cannot avoid the defense of governmental immunity. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 181, 544 A.2d 1185 (1988). In Gordon, a man was assaulted and robbed both outside and inside a Bridgeport housing project, rendering him brain-dead from his injuries. Id., 162-63. The conservatrix of his estate sued the defendant housing authority claiming it was negligent in providing security for the housing project. Id. The court held that whether the act of providing security was discretionary or ministerial was irrelevant because the plaintiff had failed to allege that the defendant had any duty at all to the injured man to provide security. Id., 181.

The facts alleged in the present case do not show that Blair was under a duty to the decedent to warn the decedent's parents at the time she allegedly received the "information." The plaintiff does not allege that the policy described in subparagraph 25(f) of count five requires school employees to warn parents whenever they merely receive information about a threat. The plain language of the policy, as alleged, requires that school employees report only an actual threat of suicide. It is implicit from the language in the complaint that the employee must have personal knowledge of the threat.

The estate does not allege that the decedent threatened suicide directly to Blair, which would have triggered her duty to notify under the high school's alleged policy. It only alleges that Blair received unspecified information that the decedent was suicidal. In the absence of an allegation that Blair had personal knowledge that the decedent had threatened to kill himself, Blair could not have been under a duty to report. Therefore, she could not, as a matter of law, have neglected a ministerial duty. The motion to strike is granted as to count five.

V COUNTS SIX AND SEVEN — CLAIMS OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS BY MRS. AND MR. CASEY AGAINST BLAIR, IN HER OFFICIAL CAPACITY

In counts six and seven, Mrs. and Mr. Casey allege negligent infliction of emotional distress against Blair, in her official capacity, because of her failure to counsel or otherwise help the decedent or to warn them of his impending suicide. As to these counts, Blair is protected by governmental immunity under General Statutes § 52-557n(a)(2)(B). See part IV. Neither Mrs. or Mr. Casey allege that Blair was under any duty to parents of students to act in a certain way under the alleged circumstances. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 181; part IV. Thus, Blair's actions were discretionary, and, for the reasons stated in part I, no exception to immunity applies. The motion to strike counts six and seven is granted.

VI COUNTS EIGHT AND NINE — CLAIMS OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BY MRS. AND MR. CASEY AGAINST BLAIR, IN HER INDIVIDUAL CAPACITY

In counts eight and nine, Mrs. and Mr. Casey allege that Blair's failure to take action to prevent the decedent's suicide or to warn them of his suicidal disposition constitutes an intentional infliction of emotional distress. Blair seeks to strike counts eight and nine on the ground that Mrs. and Mr. Casey have failed to allege extreme and outrageous conduct. They have indeed failed to so allege, and thus have not stated actions for intentional infliction of emotional distress.

"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that [she] knew or should have known that emotional distress was the likely result of [her] conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).

"Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause . . . mental distress of a very serious kind." DeLaurentis v. New Haven, 220 Conn. 225, 267, 597 A.2d 807 (1991); W. Prosser W. Keeton, Torts (5th Ed. 1984), § 12, p. 60. In counts eight and nine, which contain essentially the same allegations, Mrs. and Mr. Casey allege that Blair failed to follow established procedure when she received information that the decedent was suicidal and that she failed to take any steps to prevent his suicide. In order to determine whether the elements of the claim of intentional infliction of emotional distress are met, the court must consider whether Blair's nonfeasance rises to the level of extreme and outrageous conduct. See Ward v. Greene, Superior Court, complex litigation docket at Norwich, Docket No. X04 CV 99 0120118 (March 20, 2001, Koletsky, J.).

In Estate of Smith v. West Hartford, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0080891 (July 28, 2003, Sferrazza, J.), a widow sued officers of the West Hartford police department for failing to take steps to prevent the suicide of her husband — also a police officer. She alleged in one of the counts that the officers, through their nonfeasance in response to signs of her husband's suicidal tendencies, intentionally caused her to suffer emotional distress. Id. She claimed that their failure to "refer [her husband] to a professional counselor . . . to remove his firearm, and . . . to reassign him to desk duty" constituted extreme and outrageous conduct. Id. The court disagreed and held that the lack of "affirmative misbehavior" on the part of the defendants, and the fact that the plaintiff did not suffer "public ridicule," rendered the conduct insufficient to be extreme and outrageous as a matter of law. Id.

In light of Estate of Smith, Blair's conduct in the present case could not, as a matter of law, be extreme and outrageous. The alleged misconduct is the mere failure to act on unspecified information that the decedent was suicidal, without even an allegation that this nonfeasance was willful. This cannot constitute "affirmative misbehavior." Furthermore, there is no element of "public ridicule" present in this case. The defendants' motion to strike counts eight and nine is granted because Blair's conduct does not "[exceed] all bounds usually tolerated by decent society . . ." DeLaurentis v. New Haven, supra, 220 Conn. 267.

CONCLUSION

The motion to strike counts one, three, four, five, six and seven is granted on the ground of governmental immunity under General Statutes § 52-557n(a)(2)(B). The motion to strike counts eight and nine is granted on the ground that the plaintiffs have failed to allege extreme and outrageous conduct, which is necessary to allege a cause of action for intentional infliction of emotional distress. The motion to strike count two is denied because governmental immunity does not apply to the failure to make any attempt to comply with Gen. Stat. § 10-221(e) and the plaintiff has properly stated the element of proximate cause.


Summaries of

Giard v. Putnam

Connecticut Superior Court Judicial District of Windham at Putnam
Dec 3, 2008
2008 Ct. Sup. 19171 (Conn. Super. Ct. 2008)

In Giard v. Putnam, supra, (46 Conn. L. Rptr. 782), the plaintiffs filed a complaint alleging negligence against nine defendants, including the town of Putnam board of education (board).

Summary of this case from Doe v. Town of Madison
Case details for

Giard v. Putnam

Case Details

Full title:MICHAEL GIARD ET AL. v. TOWN OF PUTNAM

Court:Connecticut Superior Court Judicial District of Windham at Putnam

Date published: Dec 3, 2008

Citations

2008 Ct. Sup. 19171 (Conn. Super. Ct. 2008)
46 CLR 782

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