STUDWELL v. FRANK A. BERRY SCHOOL, No. CV08-5005045 S (Jun. 17, 2009)

SHABAN, JUDGE.

On May 23, 2008, Richard Studwell, Jr. (the plaintiff), a minor child through his mother and next friend Debra Studwell, commenced this action with a four-count complaint alleging negligence against the Frank A. Berry School (the defendant) and others. The writ, summons and complaint were served on the town clerk of Bethel and allege that on June 1, 2006, the plaintiff was struck by a golf club swung by fellow student John Cleary during "Field Day" activities on the defendant's premises. The complaint further alleges that the incident, as well as the injuries the plaintiff suffered therefrom, were the result of inadequate supervision on the part of the defendant and its agents.

Prior to the instant motion, the defendant had filed a motion to strike (#126) count one of the plaintiff's complaint which alleged negligence against the defendant. That motion stated the complaint "is legally insufficient because it fails to name a legal entity as the defendant, and therefore there is a lack of subject matter jurisdiction." The motion was denied without a memorandum of decision on January 26, 2009. On February 24, 2009, the defendant filed a motion to reargue (#131) which was denied on March 2, 2009.

Also on February 24, 2009, the defendant filed the present motion to dismiss (#133) again on the grounds that the court lacks subject matter jurisdiction. Specifically, the defendant reiterates its previous argument that the court lacks subject matter jurisdiction to adjudicate the plaintiff's claim because the Frank A. Berry School is a legal non-entity and does not have the capacity to sue or be sued. The matter was argued at the short calendar of April 13, 2009.

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"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter." Practice Book § 10-31. "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007); Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).

"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

In the present case, the defendant asserts that the court is without subject matter jurisdiction because "the plaintiff has named a legal nonentity as the defendant, has not named the proper party, has not served the proper party in this matter, and therefore the proper party has not been notified of these pending proceedings." (Defendant's memorandum of law, p. 6.) None of these arguments, however, implicate the court's subject matter jurisdiction. "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). In the present case, the court has the authority to adjudicate a negligence claim against a public educational institution. CT Page 12366

Essentially, the defendant is arguing that the plaintiff has sued the wrong party. "[S]uing the wrong party, if in fact this defendant is the wrong party, is not a jurisdictional defect." (Internal quotation marks omitted.) Bednaz v. Shelansky, Superior Court, judicial district of Hartford at Hartford, Docket No. CV085019133 (September 10, 2008, Dubay, J.)

Additionally, the court finds persuasive the logic employed by Judge Rubinow in Dellavalle v. D.C. Moore School, Superior Court, judicial district of New Haven at Meriden, Docket No. CV000272084 (November 8, 2007, Rubinow, J.). In Dellavalle, when faced with a similar situation in which a plaintiff named a public school as a defendant in the lawsuit but made service on the town clerk, and the defendant moved for dismissal for lack of jurisdiction, the court held that "[i]t can be fairly assumed that the plaintiff did not intend to sue a nonexistent [entity]. Therefore, when viewing the initiating summons and complaint in the light most favorable to the opponent of the motion to dismiss, under the totality of the circumstances in this case, it is clear that the plaintiff sought to name the legal entity responsible for [the school] as a defendant in her cause of action." Id. Indeed, in the present case, the plaintiff indicates in count one, paragraph three of the complaint that the defendant "FRANK A. BERRY SCHOOL is a public educational institution, owned, operated and maintained by the Superintendent of Schools and the Town of Bethel . . ." (Emphasis added.)

"Under General Statutes § 10-240 the municipality controls the board of education that provides services for the schools within its geographical and political confines . . . Local boards of education . . . are agents of the towns, subject to the law governing municipalities, when acting on behalf of the municipality in its function of mandating control over the public schools within the municipality's limits . . . The board of education is not a separate body corporate and politic such as a municipal housing authority established pursuant to General Statutes § 8-40 or a parking authority established pursuant to General Statutes § 7-202. A school district is a body corporate pursuant to General Statutes § 10-241 and pursuant to General Statutes § 10-240 each town is a school district . . . [A]s an agency of the Town, service upon the town clerk as provided in § 13a-149 was sufficient notice to the Board [of education] . . .

General Statutes § 52-57(b) outlines the proper method of service for towns and town boards, and states, in relevant part: `[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . (1) Against a town, upon its clerk; . . . (5) against a board, commission, department or agency of a town . . . upon CT Page 12367 the clerk of the town . . .'" (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.

Therefore, "by serving the town clerk with its initial complaint, the plaintiff properly served the town and the board of education, and thus further evinced [his] intent to sue [the] legal entity responsible for [the school]." Id.

Because the court has subject matter jurisdiction to adjudicate the plaintiff's claim and the defendant was put on adequate notice of the action against it, the defendant's motion to dismiss is denied.