Durrant v. Board of Ed. of City of Hartford

900 A.2d 608

96 Conn.App. 456

Sharon DURRANT v. BOARD OF EDUCATION OF the CITY OF HARTFORD et al.

No. 26437.

Appellate Court of Connecticut.

Argued February 23, 2006.

Decided July 11, 2006.

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Paul N. Shapera, Hartford, for the appellant (plaintiff).

Jeffrey G. Schwartz, with whom was Christopher Goings, certified legal intern, for the appellees (defendants).

DUPONT, J.

The plaintiff, Sharon Durrant, appeals from the judgment of the trial court rendered following the granting of the defendants'¹ motion for summary judgment, which was based on governmental immunity under General Statutes § 52-557n(a)(2)(B) and Connecticut common law.² The plaintiff claims that the defendants' failure to remove a puddle of water on an outside staircase of a public school attended by her son was an act that subjected her, as an identifiable member of a foreseeable class of persons, to imminent harm, thereby abrogating the defendants' claim of governmental immunity. We reverse the judgment of the trial court and remand the case for further proceedings.

The issue of this appeal is whether the doctrine of governmental immunity should shield the defendants from responsibility for the alleged harm to a parent of a six year old student at a public school, incurred on the school premises, when the parent picked up the student from an after school program conducted under the auspices of the defendant board of education pursuant to General Statutes § 17b-737. The subsidiary question is whether such a parent can be considered a foreseeable victim of imminent harm due to the alleged improper maintenance of the school premises within the precepts of Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994), or whether such a parent is not within the class of foreseeable victims as defined in Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005). The answers to the questions posed, in view of the pleadings of the parties, and the affidavits submitted with the motion for summary judgment and the documentary opposition thereto, are determinative of whether the defendants were entitled to summary judgment. We conclude that the plaintiff is within a cognizable and narrowly defined class of foreseeable victims who, as a matter of policy, come within the protection of the "evolving expectations of a mature society"; Burns v. Board of Education, supra, at 647, 638 A.2d 1;³ and therefore, overcome the barrier of governmental immunity of a municipality for discretionary acts.

The following factual and procedural history is pertinent to our discussion of the issues on appeal. In her complaint and subsequent affidavit in response to the motion for summary judgment, the plaintiff alleged that on September 14, 2001, at approximately 4 p.m., she arrived at West Middle School⁴ to pick up her six year old son from an after school day care and homework study program conducted by the Boys and Girls Club and the school. As she exited the school, the plaintiff slipped and fell due to a puddle of water that had accumulated on the backdoor stairs, sustaining several injuries. The plaintiff claims that the defendants failed to inspect the stairs reasonably, failed to promulgate policies and procedures that required inspection and removal of standing water and failed to warn the plaintiff and others adequately of the dangerous condition on the stairs.

The defendants denied the allegations of the complaint and raised the special defenses of contributory negligence and the doctrine of governmental immunity, pursuant to § 52-557n and the common law. The plaintiff denied the allegations in the defendants' answer and the assertion that § 52-557n and the common law barred her claims. The defendants filed a motion for summary judgment, pursuant to Practice Book § 17-49 et seq. on the ground that governmental immunity barred the plaintiff's recovery on her complaint. The plaintiff argued that (1) the doctrine of governmental immunity is inapplicable because whether removal of water from a staircase is a ministerial or discretionary act is a question of fact that should be left for the jury's determination and (2) even if removal of water from the staircase is a discretionary act, the plaintiff's cause of action falls within the "identifiable person-imminent harm" exception to governmental immunity.

The court granted the defendants' motion for summary judgment, concluding in its memorandum of decision that it was apparent from the complaint that the omissions alleged in the plaintiff's complaint were discretionary acts, thereby permitting the court to consider the motion for summary judgment pursuant to Segreto v. Bristol, 71 Conn.App. 844, 855, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).⁵ The court concluded that the plaintiff's claim that the "identifiable person-imminent harm" exception to the governmental immunity doctrine should govern did not apply.⁶

Addressing the plaintiff's claim that her presence at the school was a necessity and, therefore, that she was an identifiable person or a member of a foreseeable class of victims subject to imminent harm, the court found that the plaintiff failed to plead any facts indicating that this was the case. Citing Practice Book § 10-1, the court concluded that the plaintiff was not entitled to litigate the factual issue of whether her presence was a necessity because she failed to plead any such allegation properly. The court, assuming arguendo that the plaintiff was entitled to litigate the factual issue regarding her presence, concluded, in the alternative, that she did not fall within the exception, as a matter of law. The court found that both the plaintiff and her son were voluntarily present at the school. On the basis of the fact that the plaintiff's attendance was not statutorily compelled, the court concluded that the plaintiff could not fall within the identifiable person-imminent harm exception to governmental immunity as defined in existing Connecticut appellate decisions.

The plaintiff claims that the court improperly granted the defendants' motion for summary judgment because the "[d]efendants' failure to remove a puddle of water from an elementary school staircase was an act that would likely subject an identifiable person or class of persons to imminent harm. . . ." In support of her claim, the plaintiff asserts that, as a parent of children who are denied public transportation to and from school because of the close proximity between the family home and the school, she is a member of a narrow class of parents who may reasonably be expected to be on school grounds to transport their elementary age children home safely.⁷

The plaintiff claims that she is statutorily compelled to relinquish protective custody of her children to the school board and its employees. She asserts that, in light of the transportation policy, the only safe and effective manner in which she can reestablish protective custody is to accompany her young child personally from the school building. The plaintiff contends that she, as a parent of a child for whom bus transportation was unavailable, was required to be at the school for the limited purpose of reestablishing her custody and transporting her child out of the building safely. She claims, therefore, that this foreseeability places her in an identifiable class of persons to whom the defendants owed a duty of care.

Addressing the imminent harm element of the exception, the plaintiff asserts that a puddle of water falls within the circumstances of imminent harm as discussed in the existing case law, namely, a dangerous condition limited in duration and geography. In support of this claim, the plaintiff points out that the threat posed by the condition, slipping, is inherent to the defect and that the threat is temporary in nature, as it will diminish and cease as the water evaporates. In terms of the harm element, the plaintiff sees little difference between the icy conditions on school grounds in Burns and the condition of school grounds in the present case. As such, she contends that the imminent harm element of the exception is satisfied.

The defendants claim that the plaintiff is not entitled to litigate the issues of whether her presence was required by law or whether the puddle created a threat of imminent harm because she failed to plead or offer evidence properly as to either allegation. In the alternative, the defendants claim that the circumstances of this case do not fall within the identifiable person-imminent harm exception to governmental immunity. The defendants first claim that the plaintiff failed to allege or to demonstrate that she was required to be on school property. Specifically, the defendants assert that the plaintiff and her son were on school grounds voluntarily. The defendants also contend that the plaintiff failed to show any public policy reason for expanding the parameters of identifiable persons beyond those established by case law.

The court, in its memorandum of decision granting the defendants' motion for summary judgment, rejected the plaintiff's argument that she fell within the identifiable person-imminent harm exception on the basis of its conclusion that the plaintiff did not plead any facts indicating that her presence at the school was mandated by law. On appeal, the defendants request that we invoke this reasoning to affirm the judgment of the trial court.

"Guiding our inquiry as to all of the claims is our well established standard of review of a trial court's decision granting a motion for summary judgment. 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.) Aselton v. East Hartford, 277 Conn. 120, 130, 890 A.2d 1250 (2006). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under...