No. CV 02-0820429
May 27, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This ten-count complaint arises out of the alleged mental and physical abuse of the plaintiff, Paul Haberern, by defendant Floyd Castonguay, who was a teacher at the plaintiff's elementary school from approximately 1966 to 1968. Castonguay was employed by defendant East Hartford Board of Education (East Hartford) from September 1962 to June 1967, then from September 1968 until his retirement in July 1989. Castonguay was also employed by the Wethersfield Board of Education (Wethersfield) during an interim period from September 1967 until 1968. From September 1962 until June 1967, Castonguay taught at Woodland Elementary School in East Hartford, where plaintiff was a student at the time but not in Castonguay's class. Castonguay met the plaintiff because he was the teacher of the plaintiff's other brother and became a family friend and would travel with the family on vacations. At the end of the 1966-1967 school year, Castonguay terminated his employment with East Hartford to work with Wethersfield. Some time prior to resigning from his position, Wethersfield received a complaint stating that Castonguay had engaged in improper sexual language and conduct with a seventh grade boy. Castonguay admitted the boy's allegations were true and resigned in November of 1967. Two months later, Castonguay applied for a teaching position at three other schools, one of them being an East Hartford school, which hired him without conducting an inquiry about his experience at Wethersfield or requiring him to submit a formal application for employment.
In his October 9, 2002 complaint, the plaintiff alleges negligence, liability under respondeat superior, and discrimination under U.S.C. Title IX, and a claim under General Statutes § 52-777n as to co-defendant East Hartford.
On May 28, 2004, East Hartford moved for summary judgment as to counts 7, 8, 9 and 10 directed to it. More specifically, East Hartford argues that count seven sounding in negligence, is barred by governmental immunity; count eight alleging respondeat superior, fails because a municipal entity cannot be found vicariously liable for the criminal actions of its employees when the tortfeasor acts outside the scope of employment and outside of his master's business; count nine claiming discrimination under Title IX, 20 U.S.C. 1681- 1688 fails because no cause of action under Title IX existed for actions prior to 1972, and further, that even if the act applied retroactively, the plaintiff's claim fails because it does not meet the requirement. Defendant claims that count ten, brought under General Statutes § 52-777n does not provide a cause of action upon which relief can be granted when the actions of a board of education's employees are discretionary in nature and when criminal activity is the basis for the claim.
Our Appellate Court has discussed the liability of municipalities for negligence in hiring employees in the following language:
Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct . . . The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . The word "ministerial" refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. Prescott v. Meriden, 80 Conn.App. 697, 700-01, 836 A.2d 1248 (2003).
The existence of a breach of a ministerial duty may be established by showing the defendant possessed prescribed procedures or policies to which it failed to adhere. Gauvin v. New Haven, 187 Conn. 180, 186 445 A.2d 1 (1982). Furthermore, the absolute failure to perform a prescribed duty, rather than failure to perform a duty reasonably, properly or adequately, involves a ministerial act and results in liability. Morninstart Robishaw v. N. Eng. C.r.r., Superior Court, judicial district of Tolland, Docket No. X07 CV99 00716175 (Jul. 14, 2000, Bishop, J.) ( 27 Conn. L. Rptr. 586).
In 2001, the legislature enacted General Statutes § 10-222c, which states "prior to hiring any person, a local or regional board of education shall make a documented and good faith effort to contact previous employers of the person in order to obtain information and recommendations which may be relevant to the person's fitness for employment."
The plaintiff cites § 10-222c to show that the board of education had a duty to make a documented and good faith effort to contact previous employers to determine an applicant's fitness for employment and claims "The East Hartford Board of Education's file does not contain any documented attempt to contact the Wethersfield Public Schools when Mr. Castonguay reapplied for a teaching position with the East Hartford Board of Education in June 1968, having just resigned from the East Hartford school system the previous year."
Whether the acts complained of are governmental or ministerial is a factual question which depends upon the nature of act complained of. Gauvin v. New Haven, 187 Corn. 180, 196. The determination of whether the defendant failed to perform a "discretionary act" involves resolution of disputed issues of fact which, is normally a question of fact for the fact finder.
Since plaintiff has shown a genuine issue of material fact to exist as to whether East Hartford's checking of Castonguay's prior employment was ministerial or discretionary, the defendant's motion for summary judgment is denied as to count seven. Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994).
In count eight, the claimant alleges that East Hartford is vicariously liable for the acts of its agent, Castonguay, for activities in connection with Castonguay's sexual abuse of the plaintiff.
General Statutes § 52-557n(a)(2) provides, "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 CT Page 9394 criminal conduct, fraud, actual malice or wilful misconduct." (Emphasis added). In the present case, the act in question is the sexual abuse of the plaintiff, which is clearly criminal conduct. General Statutes §§ 53a-70, 53a-71, 53a-73a, and 53-21. Defendant's motion to strike count eight is granted.
For a board of education to be liable under Title IX of the Education Amendments of 1972, 20 U.S.C. 1681- 1688, it must (1) be in receipt of actual notice of the discrimination and (2) its response must amount to deliberate indifference. Gebser v. LagoVista Independent School Dist., 524 U.S. 274, 290 (1998). Plaintiff further must demonstrate that an official who "has authority to address the alleged discrimination and to institute corrective measures of the federal funding recipient's behalf" have actual knowledge of the discrimination. Id. The plaintiff has failed to submit any evidence to show that East Hartford was in receipt of actual notice of the alleged discrimination. Consequently he has failed to show the existence as to any genuine issue of material fact. Defendant's motion for summary judgment as to count is granted.
Defendant relies on its defense of Governmental Immunity to seek summary judgment as to Count Ten citing General Statutes § 52-557n.
In relevant part, General Statutes § 52-557n(2) provides,"(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
The determination of whether the defendant failed to perform a "discretionary act" involves resolution of disputed issues of fact which "is normally a question of fact . . ." Gauvin v. New Haven, 198 Conn. 180, 186, supra, discussion as to count seven. Whether East Hartford's acts constituted ministerial or discretionary actions so as to come under the coverage of this statute requires determination of a material question of fact. Defendant's motion for summary judgment on count ten is denied.
In summary, East Hartford's motion for summary judgment as to counts eight and nine is granted and East Hartford's motion for summary judgment as to counts seven and ten is denied.
BY THE COURT