2010 Ct. Sup. 19035
No. CV 084017309SConnecticut Superior Court Judicial District of New Britain at New Britain
September 27, 2010
MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT, #137
SWIENTON, J.
The defendants, the Town of Berlin and the Berlin Board of Education, move for summary judgment with regard to count seven in the amended complaint, dated November 23, 2009 filed by the plaintiff, Tyler Winkler. The plaintiff alleges that while he was a student at Berlin High School in Berlin, Connecticut, the defendant, Danielle Grasso (hereinafter Grasso), an employee of the Berlin Board of Education and the Town of Berlin, engaged in inappropriate touching of the plaintiff. He further alleges that this misconduct occurred on school grounds.
The thrust of the only remaining count is that the municipal defendants were negligent in their hiring, training and supervision of Grasso, which led to the sexual abuse the plaintiff is alleging. The defendants assert that there are no genuine issues of material fact, that the plaintiff’s claim is barred by the doctrine of governmental immunity, and therefore they are entitled to judgment in their favor as a matter of law. In their answer filed May 26, 2010, the defendants asserted as special defenses that the claims against them are barred by the applicable provisions of governmental immunity and by General Statutes § 52-557n.
I. FACTS
Grasso was hired by the Berlin Board of Education for the 2005 school year, and worked part-time as a paraprofessional in the NET (Non-Traditional Educational Training) program. Prior to that, she had been employed by the Southington Board of Education. She had never been accused of any type of inappropriate behavior or relationship nor investigated for any type of inappropriate contact with a student.
The plaintiff entered the NET program in February 2006, at the age CT Page 19036 of 17. He turned 18 in April 2006. After several weeks in the program, Grasso began showing attention to the plaintiff, staring at him, bringing him breakfast to school, and then initiated some touching. The plaintiff also engaged in some inappropriate touching of Grasso. Some of the touching was witnessed by David Cusano, another paraprofessional and coworker of Grasso. None of the conduct was reported to the principal, either by the plaintiff, Grasso, Cusano, nor other Board of Education employees.
The plaintiff alleges that all of the touchings were of a sexual nature and occurred within the confines of the NET classroom during school hours from February 2006, through the end of the school year in June 2006. In the summer 2006, the plaintiff and Grasso began an intimate sexual relationship. The plaintiff asserts that the effects of the misconduct by Grasso, and the Board’s failure to provide training to its employees, resulted in a foreseeable harm to the plaintiff.
II. DISCUSSION A. Summary Judgment
Summary judgment shall be rendered “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.” Practice Book § 17-49. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003). The moving party has the burden of showing the absence of any genuine issue of material fact, and therefore, their entitlement to judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). The nonmoving party “must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.)Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). It “must be demonstrated by counter affidavits and concrete evidence.” (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1109 (1997). “A material fact . . . [is] a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). The question of governmental immunity is a question of law and may be CT Page 19037 decided on a motion for summary judgment. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).
B. Governmental Immunity
Count seven of the amended complaint against the Board of Education and the Town of Berlin asserts negligence in their failure to hire, educate, train and supervise Grasso so as to not create a sexually charged learning environment, and in recognizing and reporting inappropriate conduct of a sexual nature. The issue before this court is whether the two municipal defendants are shielded from liability by governmental immunity pursuant to General Statutes § 52-557n.
“At common law, a municipality was generally immune from liability for its tortuous acts.” (Internal quotation marks omitted.)Conway v. Wilton, 238 Conn. 653, 672, 680 A.2d 242 (1996). General Statutes § 52-557n both codified and modified the common law of municipal and municipal employee liability and immunity as part of the original Connecticut Tort Reform Act. General Statutes § 52-57n(a)(2) provides in pertinent part that, “[e]xcept 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 traditionally employed distinction is as between “governmental” acts, which “are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature,” and “ministerial” acts, which “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; Hannon v. Waterbury, 106 Conn. 13, 17, 136 A. 876 (1927); Kolaniak v. Board of Education, 28 Conn.App. 277, 280, 610 A.2d 193 (1992).
“General Statutes § 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages. One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties. General Statutes § 52-557n(a)(1)(A). General Statutes § 52-557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the `negligent acts or omissions which require the exercise of CT Page 19038 judgment or discretion as an official function of the authority expressly or impliedly granted by law.'” (Citation omitted.)Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006). “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.'” Id. 615.
“There are three exceptions to discretionary act 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 . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal officer for failure to enforce certain laws. Third, liability may be imposed 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.” (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319-20, 907 A.2d 1188 (2006).
In the present case, the plaintiff concedes and asserts that any duty owed by the defendants to the plaintiff was discretionary, not ministerial, in nature. Further, both parties agree that the third situation set forth in Violano, the so-called identifiable person-imminent harm exception is the correct analysis in determining whether the plaintiff’s claim is barred. “In Doe v. Petersen, supra, 279 Conn. 616, [the Supreme Court] noted that `[b]y 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.’ All three of these factors are intimately tied to the question of foreseeability, and all must be met for a plaintiff to overcome qualified immunity.” Fleming v. Bridgeport, 284 Conn. 502, 533, 935 A.2d 126 (2007).
The plaintiffs allegations indicate that the identifiable person prong is satisfied. “[The Supreme Court has] construed the identifiable person-imminent harm exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims . . . [The court has] established specifically that school children who are statutorily compelled CT Page 19039 to attend school, during school hours on school days, can be an identifiable class of victims.” (Citation omitted; internal quotation marks omitted.) Doe v. Board of Education, 76 Conn.App. 296, 301, A.2d (2003).[1]
The plaintiffs allegations fail to indicate, however, that the harm was imminent. “[The] Supreme Court [has] emphasized the limited nature of the concept of imminent harm . . . [I]n [cases where the identifiable person-imminent harm exception has applied to school children], the identifiable person-imminent harm exception was applicable because the dangerous condition was sufficiently limited both in duration and in geography to make it apparent to the defendants that school children were subject to imminent harm.”Id., 302-03. In Doe v. Board of Education, the plaintiff was a victim of sexual assault by three male students. The court found that the plaintiff in that case had failed to allege facts that demonstrated that the alleged danger was limited to a particular area of the school and a particular time period Id. 304-05. Further, “because the facts alleged by the plaintiff [were] insufficient to establish that it was apparent to the defendant that its failure to act would be likely to subject students to imminent harm, the defendant is immune from liability for its discretionary acts.” Id., 305.
“`Imminent’ is defined as something about to materialize of a dangerous nature. Imminent harm excludes risks which might occur, if at all, at some unspecified time in the future. In order to meet the imminent harm prong of this exception . . . the risk must be temporary and of short duration . . . Such conditions that have been identified as `imminent’ include ice on school grounds, tripping a student in the hallway, and the immediate opening of a door.” (Citations omitted; internal quotation marks omitted.) Cady v. Tolland, Superior Court, judicial district of Tolland, Docket No. CV 05 5000054 (November 30, 2006). “[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.) Purzycki v. Fairfield, 244 Conn. 101, 124, 708 A.2d 937 (1998).
The plaintiff argues that as an identifiable victim, he could also be considered in foreseeable imminent harm because of the emotional conditions from which he suffers.[2] However, the allegations are that the acts occurred between February 2006, and October 2006, and on property “including but not limited to property owned, operated, controlled and/or supervised by the defendant Board of CT Page 19040 Education.” (Amended complaint, First Count, ¶ 6.) Further, the supporting documentation supplied by both the plaintiff and the defendant make it clear that although certain alleged sexual misconduct occurred during the school year, the intimate, sexual relationship did not happen until after the 2006 school year had ended. “[T]he criteria of identifiable person and imminent harm must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person.”Cotto v. Board of Education of the City of New Haven, 294 Conn. 265, 276, 984 A.2d 58, (2009). Here, as in Doe v. Petersen supra, the alleged conduct could have occurred at any time or at any place while the plaintiff was in the NET program. The court cannot find that it was apparent to the defendants that their failure to supervise, train, and/or educate Grasso would likely subject the plaintiff, as an identifiable person, to imminent harm. Accordingly, the defendants are immune from liability.
CONCLUSION
For the foregoing reasons, the motion for summary judgment as to count seven against the Berlin Board of Education and the Town of Berlin is granted.
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