QUINN v. DERBY, No. CV08-5007389S (Dec. 1, 2009)

RADCLIFFE, J.

The minor Plaintiff, Christian Quinn, who brings this action through his mother and next friend Kristin Valente, was a first grade student at Bradley School, a public school located in the City of Derby, on May 1, 2008.

During a recess period, he was engaged in a game of soccer with approximately seventeen (17) other students. The game was being played on a former tennis court, in the school playground. Although the net had been removed, two net posts, to which the net was once affixed, remained on the surface.

While engaged in the soccer game, Christian Quinn tripped, striking his forehead just above the left eye on one of the tennis poles. He was taken to Yale-New Haven Hospital, where he was treated for a severe deep laceration.

In this action, the Plaintiff claims that school officials were negligent, in that they did not properly supervise the students, and exercised poor judgment, resulting in the injury sustained by Christian Quinn.

The City of Derby, the Derby Board of Education, and each of the individually named defendants, Superintendent of Schools Dr. Stephen Tracy, school principal Linda Coppola, and classroom paraprofessional Amanda Richards, have moved for summary judgment. They claim that the action is barred by the doctrine of municipal immunity, pursuant to the provisions of § 52-557n(a)(2)(B) of the General Statutes.

The Plaintiff claims that Christian Quinn, at the time of the incident, was an identifiable victim, subject to the threat of CT Page 200 imminent harm. Therefore, the incident falls within one of the recognized exceptions to the doctrine of qualified municipal immunity.

A trial court may appropriately render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and that the moving party is entitled to a judgment as a matter of law. Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983). A material fact has been defined as one which will make a difference in the result. United Oil Co. v. Urban Renewal Commission, 158 Conn. 364, 379 (1969).

Connecticut Practice Book § 17-49 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law."

The burden is on the moving party to show quite clearly what the law is, and that any real doubt as to the existence of a material fact has been excluded. Fogarty v. Rashaw, 193 Conn. 442, 445 (1984); Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979). In determining a motion for summary judgment, a trial court must view all evidence in the light most favorable to the nonmoving party. Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202 (1995). The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict. United Oil Co. v. Urban Redevelopment Commission, supra, 380.

Although the purpose of a motion for summary judgment is to test for the presence of factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate, where the complaint fails to set forth a viable cause of action, and the defect cannot be cured by re-pleading. Larobina v. McDonald, 274 Conn. 392, 401 (2005).

At common law, a municipality was generally immune from liability for tortious acts; Gordon v. Bridgeport Housing Authority, CT Page 201 208 Conn. 161, 165 (1988); although municipal employees could be held personally liable for their tortious conduct. Evon v. Andrews, 211 Conn. 501, 505 (1989).

The Connecticut General Assembly possesses the authority to abrogate any common-law immunity enjoyed by municipalities; Ryszkiewski v. New Britain, 193 Conn. 589, 593 (1984), and has done so in § 52-557n(a)(1) of the General Statutes. That liability is expressly limited by § 52-557n(a)(2), which exempts a municipality from liability for acts requiring the "exercise of judgment or discretion."

If the duty of the municipal official or employee is ministerial, rather than discretionary, the failure to perform it, or the negligent performance of the ministerial act or duty, may give rise to a cause of action. Shore v. Stonington, 187 Conn. 147, 152 (1982). A ministerial act is one which is to be performed in a prescribed manner, without the exercise of judgment or discretion by an employee. Fraser v. Henninger, 173 Conn. 52, 60 (1977).

Three exceptions to the qualified immunity for the performance of discretionary acts by municipal employees have been recognized. These are: 1) where circumstances make it apparent to the public officer that his or her failure to act will subject an identifiable individual to the threat of imminent harm, 2) where a statute specifically provides for a cause of action against a municipality or a municipal official for the failure to enforce certain laws, and 3) where the alleged acts involve malice, wantonness or intent to injure rather than negligence. Burns v. Board of Education, 228 Conn. 640, 645 (1994); Evon v. Andrews, supra, 506.

The Plaintiff claims that the exception to the doctrine of qualified immunity which is applicable to the present case, is the exception which permits an action in circumstances where the negligence of a municipal employee subjected an identifiable individual to the threat of imminent harm.

In order to demonstrate that he is an "identifiable victim," the Plaintiff must demonstrate that he is a member of a certain class of CT Page 202 foreseeable victims. Sesito v. Groton, 178 Conn. 520, 527-28 (1979). School children, attending classes during regular school hours, have been determined to be an identifiable class of foreseeable victims. Purzycki v. Fairfield, 244 Conn. 101, 108-09 (1998); Burns v. Board of Education, supra, 646.

The rationale for this exception is that public school students are the intended beneficiaries of particular duties of care, imposed by law upon school officials. Students are legally required to attend school, their presence at school is not voluntary, and parents are statutorily required to relinquish custody of their children to school officials during school hours. Durrant v. Board of Education, 284 Conn. 91, 106-07 (2007); Purzycki v. Fairfield, supra, 108-09, Burns v. Board of Education, supra, 647-48.

This exception has been narrowly applied. In Durrant, a majority of the Supreme Court refused to find that either a mother picking up a child following an after-school program, or the child who was not required to attend the activity, qualified as identifiable victims. Durrant v. Board of Education, supra, 104-05. Parents of a student who were attending an athletic contest at the school have also been excluded from the identifiable victim category. Prescott v. Meriden, 273 Conn. 759, 764-65 (2005).

However, because Christian Quinn was injured during a recess period conducted as part of the regular school day, he qualifies as an identifiable victim for purposes of the exception.

The defendants argue that the minor Plaintiff was not subjected to the threat of imminent harm, because the tennis net posts were permanently affixed to the property, and did not involve a transient condition.

They further maintain that the accident could have happened at any time, not simply when children were at play during recess. The absence of any similar injuries during the school day, they maintain, demonstrates that any harm to the plaintiff was not imminent. These arguments are not compelling.

In both Burns v. Board of Education, supra, and CT Page 203 Purzycki v. Fairfield, supra, the Connecticut Supreme Court determined that public school students, attending school during the course of the school day, were subjected to the threat of imminent harm.

In Burns, the Plaintiff fell due to ice on a main walkway of the school. The court, in determining that the condition was limited to the duration of the temporary icy condition, determined that the imminent harm standard had been satisfied. Burns v. Board of Education, supra, 650.

Purzycki involved a claim by a student who was tripped while walking down an unsupervised hallway on his way to recess following lunch. The court determined that the child was subject to the threat of imminent harm, because the danger was limited to the one-half-hour period when students traveled unsupervised on their way to recess. Purzycki v. Fairfield, supra, 106.

Here, the Plaintiff maintains that the danger to the student meets the requirement that it be limited in duration and geographic area; Purzycki v. Fairfield, supra, 110; because injury could only occur when children were using the tennis court during recess, and were improperly supervised while engaged in an athletic contest which was ill-suited for the tennis court area.

The Plaintiff does not claim that the presence of the tennis net pole subjected him to the threat of imminent harm at any time. His claim is one of improper supervision, during the recess period.

Just as the student in Purzycki could have been tripped during any school day while on his way to lunch, the Plaintiff in this case could have sustained injury on any day in which he was engaged in a soccer game, on a surface which was not suited for soccer (a converted tennis court), while proper and reasonable supervision was lacking.

Whether the lack of proper supervision was a substantial factor in causing the minor Plaintiff's injuries, represents a question of fact for the trier of fact.

Nor are the defendants aided by the claim that since no similar injury had occurred to a student in the past, harm was not imminent. As the court stated in Purzycki, the absence of prior similar incidents may induce a jury to find an absence of liability, but does not foreclose a finding of liability for the first incident CT Page 204 that occurs. Purzycki v. Fairfield, supra, 110-11.

The minor Plaintiff, Christian Quinn, was an identifiable victim, subject to the threat of imminent harm at the time of his injury.

The Defendants' motion for summary judgment, is therefore DENIED.