Justia.com Opinion Summary: Plaintiffs sued defendants, the board of education of the town of Watertown ("board"), the town of Watertown ("town"), and two teachers employed by the board, claiming that, as a result of defendants' negligence, one plaintiff severely injured her foot at a school dance sponsored by the board. At issue was whether the trial court improperly granted defendants' motion to strike the claims on the grounds that negligence claims against the town and board were barred by the doctrine of governmental immunity and did not come within the scope of the statutory waiver of government immunity set forth in General Statutes 52-557n; that the claims against the two teachers were barred because section 52-557n did not create a cause of action against individual municipal employees; and that, in the absence of a common law negligence claim against the teachers, there was no basis for an indemnification claim pursuant to General Statutes 7-465. The court held that the trial court properly granted defendants' motion to strike count one as to the town and the board because they were immune from suit pursuant to 52-557n(a)(2)(B) and properly determined that section 52-557n did not authorize suit against individual government employees. The court also held that the trial court improperly granted the motion to strike the first count of the complaint as to the two teachers and the entire second count seeking payment from the town and the board pursuant to section 7-465 on the ground that plaintiffs had not alleged common law negligence against the teachers. The court further held that the trial court's ruling could be affirmed on the alternate ground that the teachers were immune from liability under the doctrine of qualified immunity. Accordingly, the judgment was affirmed.
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SARAH COE ET AL. v. BOARD OF EDUCATION OF
THE TOWN OF WATERTOWN ET AL.
(SC 18433)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan and Vertefeuille, Js.
Argued March 16—officially released June 7, 2011
John R. Logan, for the appellants (plaintiffs).
Joseph M. Busher, Jr., with whom was Kathryn M.
Cunningham, for the appellees (named defendant et
al.).
Opinion
PER CURIAM. The plaintiffs, Sarah Coe (Coe) and
Mary Ellen Coe, brought this action against the defendants,1 the board of education of the town of Watertown
(board), the town of Watertown (town), and Theresa
Gregoire and Mary Jean Mangione, teachers employed
by the board, claiming that, as the result of the defendants’ negligence, Coe had severely injured her foot at
a school dance sponsored by the board. The defendants
filed a motion to strike the claims against them on the
ground that the negligence claims against the town and
the board were barred by the doctrine of governmental
immunity and did not come within the scope of the
statutory waiver of governmental immunity set forth in
General Statutes § 52-557n; the claims against Gregoire
and Mangione were barred because § 52-557n does not
create a cause of action against individual municipal
employees; and in the absence of a common-law negligence claim against Gregoire and Mangione, there was
no basis for an indemnification claim pursuant to General Statutes § 7-465.2 The trial court granted the motion
to strike and rendered judgment in favor of the defendants. The plaintiffs then appealed,3 claiming that the
trial court improperly granted the motion to strike. We
affirm the judgment of the trial court.
As stated in the trial court’s memorandum of decision, ‘‘[o]n February 29, 2008, [the plaintiffs] filed a
three count complaint . . . alleging [in count one] negligence pursuant to . . . § 52-557n against [the defendants], and [in count two] requesting indemnification
from the town and [the] board . . . for the torts of
their employees, Mangione and Gregoire. Specifically,
the complaint alleges that: (1) on June 16, 2006, the
town, through the board . . . sponsored an eighth
grade graduation dance at . . . a private catering facility . . . (2) during the course of the evening, a glass
goblet fell and broke, leaving pieces of glass on the
floor; and (3) after shedding her footwear while walking
from her table to the dance floor, [Coe] stepped on a
shard of broken glass and severely injured her left foot.
Additionally, the plaintiff[s] [allege] that . . . Gregoire
and Mangione, who are both teachers at the Swift Middle School and were chaperones at the dance, were
negligent in their supervision of the students.’’
The trial court granted the defendants’ motion to
strike count one of the complaint on the ground that
the town and the board were entitled to governmental
immunity because they were performing governmental
acts involving the exercise of judgment and discretion.
See General Statutes § 52-557n (a) (2) (B). The trial
court also granted the motion to strike count one as
to Gregoire and Mangione because § 52-557n does not
create a cause of action against individual government
employees and because ‘‘no common-law negligence
claim was pleaded . . . .’’ With respect to count two
of the complaint, the trial court determined that, in
the absence of a common-law negligence claim against
Gregoire and Mangione, there was no basis for a statutory indemnification claim pursuant to § 7-465.
The plaintiffs claim on appeal that the trial court
improperly determined that: (1) the town and the board
were not liable pursuant to § 52-557n (a) (1) (A) for
their alleged negligent acts because the acts required
the exercise of discretion and, therefore, liability was
barred by § 52-557n (a) (2) (B); (2) if § 52-557n (a) (2)
(B) applies to the plaintiffs’ claims, the claims do not
come within the exception to that provision for claims
involving identifiable persons who are subject to imminent harm; (3) § 52-557n does not provide that individual municipal employees are liable for damages caused
by certain negligent acts or omissions, but only that
political subdivisions are liable; and (4) the plaintiffs
were not entitled to relief under § 7-465 because they
did not allege common-law negligence against Gregoire
and Mangione.
With respect to the first three claims, our examination
of the record and briefs and our consideration of the
arguments of the parties persuades us that the judgment
of the trial court should be affirmed. As the trial court
noted in its well reasoned memorandum of decision,4
‘‘[i]t is fundamental that in determining the sufficiency
of a complaint challenged by a defendant’s motion to
strike, all well-pleaded facts and those facts necessarily
implied from the allegations are taken as admitted. . . .
Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d
1188 (2006). The role of the trial court in ruling on a
motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether
the [pleading party has] stated a legally sufficient cause
of action. . . . Dodd v. Middlesex Mutual Assurance
Co., 242 Conn. 375, 378, 698 A.2d 589 (1997).’’ (Internal
quotation marks omitted.)
The trial court explained that in ruling on the motion
in the present case, ‘‘the court must consider the doctrine of governmental immunity. By the passage of § 52557n the legislature abandon[ed] the common-law principle of municipal sovereign immunity and establish[ed]
the circumstances in which a municipality may be liable
for damages. Doe v. Petersen, 279 Conn. 607, 614, 903
A.2d 191 (2006). [Section 52-557n] provides in relevant
part: (a) (1) 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 . . . .
(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. . . .
‘‘Indeed, while a municipality is generally liable for
the ministerial acts of its agents, § 52-557n (a) (2) (B)
explicitly shields a municipality from liability for damages to person or property caused by the 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. Doe v. Petersen,
supra, 279 Conn. 614. The hallmark of a discretionary
act is that it requires the exercise of judgment. . . . In
contrast, [m]inisterial refers to a duty which is to be
performed in a prescribed manner without the exercise
of judgment or discretion. . . . Violano v. Fernandez,
supra, 280 Conn. 318. The court finds from the facts
of this case that the sponsoring of a middle school
graduation party at an off school site constitutes a discretionary act.
‘‘The only relevant exception [to this rule is in circumstances where it was] apparent to the public officer
that his or her failure to act would be likely to subject
an identifiable person to imminent harm . . . . Durrant v. Board of Education, 284 Conn. 91, 100, 931 A.2d
859 (2007). . . . [T]his exception [has been construed]
to apply not only to identifiable individuals but also
to narrowly defined identified classes of foreseeable
victims. . . . Id. In Doe v. Peterson, supra, 279 Conn.
616, [the Supreme Court] noted that . . . [t]his 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).’’ (Emphasis in original; internal
quotation marks omitted.)
The trial court concluded that it was ‘‘persuaded by
Durrant v. Board of Education, supra, 284 Conn. 107,
where the court found that a parent who was injured
while picking up her child from an after-school program
on school grounds when she slipped and fell on a slippery stairwell was not an identifiable victim subject to
imminent harm. In [Durrant, the court] stated that [t]he
only identifiable class of foreseeable victims that we
have recognized for these purposes is that of schoolchildren attending public schools during school hours.
In determining that such schoolchildren were within
such a class, we focused on the following facts: they
were intended to be the beneficiaries of particular
duties of care imposed by law on school officials; they
were legally required to attend school rather than being
there voluntarily; their parents were thus statutorily
required to relinquish their custody to those officials
during those hours; and, as a matter of policy, they
traditionally require special consideration in the face
of dangerous conditions. . . . Id.’’ (Internal quotation
marks omitted.)
Considering the facts alleged in the present case, the
trial court concluded that ‘‘it is clear that [Coe’s] injuries
did not occur on school grounds, her attendance at the
dance was voluntary, and [she] voluntarily removed her
shoes. Since [Coe’s] actions in attending the dance and
removing her shoes were of her own volition, none of
her choices imposed an additional duty of care on the
school authorities pursuant to the standard set forth in
Burns v. Board of Education, 228 Conn. 640, 644–48,
638 A.2d 1 (1994), and articulated by the court in Doe v.
Petersen, supra, 279 Conn. 616. The plaintiff[s’] [claims,
therefore, do] not fall within the recognized exceptions
to § 52-557n (a) (2) (B), and qualified governmental
immunity shields [the town and the board] from liability.’’
After the trial court granted the defendants’ motion
to strike count one on the grounds that the town and
the board were immune from suit pursuant to § 52-557n
(a) (2) (B), and that § 52-557n does not authorize suit
against individual government employees, the court
concluded that, because the plaintiffs had not brought
a common-law negligence claim against Gregoire and
Mangione, they were not entitled to recover from the
town or the board pursuant to § 7-465, as claimed in
count two. Accordingly, the court granted the motion to
strike all of the allegations of count one and count two.
Although we conclude that the trial court properly
granted the defendants’ motion to strike count one as
to the town and the board because they were immune
from suit pursuant to § 52-557n (a) (2) (B), and properly
determined that § 52-557n does not authorize suit
against individual government employees, we agree
with the plaintiffs’ fourth claim on appeal that the trial
court improperly granted the motion to strike the first
count of the complaint as to Gregoire and Mangione
and the entire second count seeking payment from the
town and the board pursuant to § 7-465 on the ground
that the plaintiffs had not alleged common-law negligence against Gregoire and Mangione. We conclude,
however, that the trial court’s ruling may be affirmed
on the alternate ground that Gregoire and Mangione
were immune from liability under the doctrine of qualified immunity.
We have concluded that the trial court properly
granted the motion to strike with respect to the portions
of count one containing allegations against the town
and the board and claiming that Gregoire and Mangione
were liable pursuant to § 52-557n (a) (1) (A). We do not
agree, however, that the remaining allegations against
Gregoire and Mangione are subject to a motion to strike
merely because the plaintiffs had initially made the
allegations within the framework of their claim pursu-
ant to § 52-557n (a) (1) (A). Section 52-557n (a) (1) (A)
does not create a new kind of cause of action, but
provides that political subdivisions of the state may be
held liable for certain common-law negligence claims
against them and their employees. Caman v. Stamford,
746 F. Sup. 248, 249 (D. Conn. 1990) (‘‘§ 52-557n is
grounded in the common law negligence cause of
action’’ and ‘‘did not create any new liability for municipalities which did not exist in the common law’’). It
is undisputed that, putting principles of governmental
immunity aside, the allegations of the first count of the
complaint are, on their face, legally sufficient to support
a common-law negligence claim against all of the defendants. We conclude, therefore, that the trial court
improperly struck the portions of count one alleging
negligence against Gregoire and Mangione and count
two on the ground that the plaintiffs had not alleged a
common-law negligence claim against Gregoire and
Mangione.5
This does not end our analysis, however. ‘‘[G]enerally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity
in the performance of governmental acts. . . . Governmental acts are performed wholly for the direct benefit
of the public and are supervisory or discretionary in
nature.’’ (Internal quotation marks omitted.) Bonington
v. Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010).
‘‘[T]his court has recognized that the common-law
exceptions to liability for municipal employees are codified under § 52-557n (a). . . . Therefore, the analysis
is the same [for both the municipality and the employees].’’ (Citation omitted.) Id., 307 n.8.
We have concluded that the trial court properly determined that the town and the board were immune from
liability under § 52-557n (a) (2) (B), which provides that
‘‘a political subdivision of the state shall not be liable
for damages to person . . . caused by . . . negligent
acts or omissions which require the exercise of judgment or discretion . . . .’’ It necessarily follows from
this conclusion that Gregoire and Mangione were acting
in the exercise of discretion, and the plaintiffs’ claims
against them did not come within any exception to the
rule barring a political subdivision’s liability for the
discretionary acts of its employees. Accordingly, we
affirm the judgment of the trial court striking the negligence claims against Gregoire and Mangione in count
one on the alternate ground that they were barred by
the doctrine of qualified immunity. Because the common-law negligence claims against Gregoire and Mangione are barred, there is no basis for the plaintiffs’ claim
pursuant to § 7-465, which requires municipalities to
pay ‘‘all sums which such employee becomes obligated
to pay by reason of the liability imposed upon such
employee . . . .’’ See Myers v. Hartford, 84 Conn. App.
395, 401, 853 A.2d 621 (§ 7-465 does not preclude
‘‘municipal employees from raising defenses to such
claims as are recognized by the common law’’), cert.
denied, 271 Conn. 927, 859 A.2d 582 (2004). We therefore
also affirm the trial court’s ruling granting the defendants’ motion to strike count two on this alternate
ground.
The judgment is affirmed.
1
Distasi Catering, LLC (Distasi), also was a defendant at trial, but is
not involved in the present appeal. References to the defendants do not
include Distasi.
2
General Statutes § 7-465 provides in relevant part: ‘‘(a) Any town, city
or borough, notwithstanding any inconsistent provision of law, general,
special or local, shall pay on behalf of any employee of such municipality
. . . all sums which such employee becomes obligated to pay by reason of
the liability imposed upon such employee by law for damages awarded . . .
for physical damages to person . . . if the employee, at the time of the
occurrence, accident, physical injury or damages complained of, was acting
in the performance of his duties and within the scope of his employment
. . . .’’
3
The plaintiffs appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
4
The trial court recognized preliminarily that although, ‘‘[g]enerally, where
a defendant argues that it is entitled to governmental immunity, it is required
to plead the doctrine as a special defense . . . Westport Taxi Service, Inc.
v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719 (1995) . . . there
are instances when it is appropriate for defendants to raise the defense of
governmental immunity in the context of a motion to strike. Specifically,
where 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. [Doe v. Board of
Education, 76 Conn. App. 296, 299 n.6, 819 A.2d 289 (2003)].’’ (Citation
omitted; internal quotation marks omitted.)
Because the trial court concluded that the plaintiffs ‘‘have alleged sufficient facts to demonstrate on the face of the complaint that the defendants
were engaged in a governmental function while performing the acts and
omissions complained of by the plaintiffs,’’ it found that ‘‘by sponsoring this
dance to celebrate graduation from the eighth grade, the defendants were
engaged in a governmental function. Therefore, a motion to strike is a proper
vehicle for raising the issue of governmental immunity in the present case.’’
5
See Cook v. Stender, Superior Court, judicial district of Middlesex, Docket
No. CV04-0104110 (December 22, 2004) (38 Conn. L. Rptr. 439, 440) (Prior
case law ‘‘ought not to be read for the proposition that clearly improper
allegations upon which relief may not be granted as a matter of law must
remain in a complaint indefinitely, leading to confusion for the court, the
parties and the jury, just because there are aspects of the complaint that
are otherwise valid. If the motion to strike has merit as to certain allegations
of the complaint . . . the proper course for the court is to strike those
allegations only . . . .’’); Nordling v. Harris, Superior Court, judicial district
of Fairfield, Docket No. 329660 (August 7, 1996) (17 Conn. L. Rptr. 296, 298
n.1) (‘‘Under prior case law and earlier versions of the Practice Book, it
was generally improper to demur to a paragraph of a complaint unless the
paragraph purported to state a separate cause of action. . . . Since 1978,
however, the Practice Book has not contained such a constraint.’’ [Citations omitted.]).
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