Buehler v. Town of Newtown

206 Conn.App. 472

262 A.3d 170

Albert BUEHLER

v.TOWN OF NEWTOWN et al.

AC 43087

Appellate Court of Connecticut.

Argued March 4, 2021

Officially released August 3, 2021

Matthew D. Popilowski, with whom, on the brief, was Richard J. Tropiano, Jr., New Haven, for the appellant (plaintiff).

John A. Blazi, Waterbury, for the appellees (named defendant et al.).

Prescott, Elgo and DiPentima, Js.

PRESCOTT, J.

This is a premises liability action brought by the plaintiff, Albert Buehler, against the defendants, the town of Newtown (town), the Newtown Board of Education (board), and Gregg Simon, the former athletic director of Newtown High School, arising out of injuries he sustained after he fell from a referee stand while officiating a volleyball match at Newtown High School.¹ The plaintiff appeals from the summary judgment rendered by the trial court in favor of the defendants on the ground that they are entitled to governmental immunity. The plaintiff claims that the court improperly rendered summary judgment in favor of the defendants because there is a genuine issue of material fact as to whether the plaintiff was an identifiable victim under the identifiable person-imminent harm exception to governmental immunity. We disagree and, therefore, affirm the judgment of the court.

The record before the court, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following relevant facts and procedural history. The plaintiff has worked as a volleyball referee for approximately forty years. The plaintiff received training and multiple national and state certifications in connection with his role as a referee. Further, the plaintiff was a member of the Connecticut Federation of Volleyball Officials. Although the position was part-time, the plaintiff frequently officiated matches on each day of a given week. The plaintiff regularly officiated college volleyball matches throughout the northeast, and high school volleyball matches in Connecticut and New York.

In order for its members to receive assignments for high school volleyball matches, the Connecticut Federation of Volleyball Officials utilized an online system called ArbiterSports. Referees, like the plaintiff, had access to ArbiterSports. Through the system, an assigner assigned referees to officiate specific matches, and the referees would receive notice of their match assignments via e-mail. The system assigned two referees to each match. A volleyball match properly could take place with one official, but such a situation was "unusual."² Under the rules of one of the governing agencies of high school volleyball, however, volleyball matches were not allowed to be played with no referee in attendance.

Upon receipt of notice of their match assignments, referees had the option to accept or reject the assignment. There was no rule that a referee must accept a referee assignment; however, referees generally needed to accept assignments if they wanted to continue receiving assignments in the future.

The plaintiff was assigned to officiate a girls volleyball match on September 25, 2015, at Newtown High School. The match was arranged to take place in the school gymnasium, and one of the two assigned referees was expected to stand on an officiating stand in the gymnasium for the duration of the match to provide the referee with an elevated vantage point. The officiating stand was covered in padding and secured using a pin. There was no written policy concerning how the officiating stand was to be set up prior to girls volleyball matches. The student athletes routinely set up the officiating stand and the volleyball net prior to the arrival of the referees at the direction of the volleyball coach and/or athletic director. To set up the officiating stand, students were instructed to separate the two side rails of the ladder, rest the platform on top of the ladder, and secure the stand by inserting an attached pin. Simon, who ultimately was responsible for equipment setup in the school gymnasium, supervised setup prior to the volleyball match at issue.

Prior to the varsity match, a junior varsity match took place, and the plaintiff served as one of the two referees. During the junior varsity match, the other referee stood on the officiating stand. The plaintiff, however, stood on the officiating stand during the varsity match. Prior to the commencement of the varsity match, the plaintiff assured himself that the officiating stand had proper padding and was stable by "wiggl[ing] it ...." Subsequently, the plaintiff climbed onto the stand. Approximately one hour into the match, the officiating stand collapsed. The plaintiff fell approximately four to five feet and was injured.

In September, 2017, the plaintiff commenced this action, alleging that the defendants’ negligent maintenance of the stand, failure to inspect and repair the stand, and failure to erect or maintain proper safeguards or warning signs, constituted a defective condition on the school premises that caused the injuries sustained by the plaintiff. The plaintiff further alleged that the defendants knew or, in the exercise of reasonable care, should have known about the defective stand.

In December, 2017, the defendants requested that the plaintiff revise several counts of his complaint to address, inter alia, the alleged basis of the town's and the board's liability. The defendants also requested that the plaintiff identify whether the individual defendants’ actions were ministerial or discretionary.³ In both requests, the defendants asserted that each defendant, either as a municipality or as an agent thereof, enjoyed qualified immunity from liability for the plaintiff's injuries.

The plaintiff filed a revised complaint on May 4, 2018, alleging, inter alia, that (1) the town and the board were liable to the plaintiff under General Statutes §§ 10-235,⁴ 52-557n,⁵ and 7-465 ;⁶ and (2) the individual defendants were public officials whose conduct was likely to subject the plaintiff, an identifiable victim, to imminent harm. The defendants filed an answer to the revised complaint and special defenses. By way of special defenses, the defendants asserted that, because the actions that each defendant took were discretionary in nature, each defendant was immune from liability.⁷

On October 30, 2018, the defendants filed a motion for summary judgment as to all six counts of the revised complaint, asserting that there were no genuine issues of material fact in dispute and the defendants were entitled to judgment as a matter of law. In support of their motion, the defendants submitted a memorandum of law, several affidavits, and excerpts from the plaintiff's deposition transcript.⁸ The defendants argued that they had shown through their submissions that their allegedly negligent actions were discretionary, and thus they enjoyed governmental immunity unless the plaintiff fell within the narrow identifiable person-imminent harm exception to governmental immunity recognized by our Supreme Court. The defendants further argued that the plaintiff was not an identifiable victim, because the plaintiff voluntarily attended the volleyball match at which he was injured.⁹ The defendants asserted that, because there was no question of fact that the plaintiff did not fall within the narrow identifiable person-imminent harm exception, the plaintiff could not prevent the application of governmental immunity, and the trial court was required to grant summary judgment in their favor.

In response, the plaintiff objected to the defendants’ motion for summary judgment¹⁰ in December, 2018, and, in support, submitted excerpts from Simon's and Czaplinski's depositions as well as a copy of board policies concerning the qualifications and duties of the athletic director for the school. The plaintiff argued that genuine issues of material fact existed as to whether (1) the plaintiff was, in fact, an identifiable victim under the identifiable person-imminent harm exception to governmental immunity, (2) the plaintiff was subject to imminent harm under the identifiable person-imminent harm exception to governmental immunity, and (3) the remaining defendants’ duties were ministerial, not discretionary. The remaining defendants reiterated their arguments in a reply to the plaintiff's objection.

On December 14, 2018, the plaintiff filed a request for leave to amend the revised complaint, which was granted on January 10, 2019, over the objection of the defendants. The plaintiff amended counts one, two, and five against the town, the board, and Simon, respectively, by removing certain language concerning reasonableness and adding references to the board policy concerning the qualifications and duties of the athletic director for the school. The defendants filed a supplemental motion for summary judgment, noting that no further argument was necessary because they had already addressed all relevant issues in their original motion for summary judgment. The trial court heard argument on the motion for summary judgment on February 25, 2019.

The trial court, Welch, J. , granted the defendants’ motion for summary judgment. The trial court determined preliminarily that, because the defendants’ actions were discretionary, rather than ministerial, they were immune from liability unless the plaintiff fell within the identifiable person-imminent harm exception to the governmental immunity doctrine. A party is an identifiable victim, the trial court explained, when that person is compelled to be somewhere, outside of limited circumstances. Thus, the trial court noted that the class of identifiable persons to which the exception is generally applicable is usually limited to students attending public schools during regular school hours because they are legally compelled to be on the school premises. The trial court determined that the plaintiff, a volleyball referee, was not legally compelled to be on the school premises at the time of his...