Hughes v. Bd. of Educ. of Waterbury

221 Conn.App. 325

300 A.3d 1209

Naionna HUGHES et al. v. BOARD OF EDUCATION OF the CITY OF WATERBURY et al.

AC 45354

Appellate Court of Connecticut.

Argued March 20, 2023

Officially Released August 22, 2023

John Serrano, West Hartford, for the appellants (plaintiffs).

Daniel J. Foster, corporation counsel, for the appellees (defendants).

Elgo, Cradle and Keller, Js.

ELGO, J.

The plaintiffs, Naionna Hughes and her mother, Juanita Jones, ¹ appeal from the judgment of the trial court rendered in favor of the defendants, the Board of Education of the City of Waterbury (board), the city of Waterbury (city), Irena Varecka, and Jessica Giorgi. On appeal, the plaintiffs claim that the court improperly granted the defendants’ motion to strike their complaint on the ground of governmental immunity. More specifically, they contend that the court improperly concluded that the identifiable victim subject to imminent harm exception to governmental immunity did not apply. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as alleged in the plaintiffs’ complaint; see Picco v. Voluntown , 295 Conn. 141, 144 n.5, 989 A.2d 593 (2010) ; are relevant to our resolution of this appeal. At all relevant times, Hughes was a resident of Waterbury who attended West Side Middle School (school), a public school under the control of the board. Varecka and Giorgi were employed by the board as a teacher and a counselor, respectively, at the school.

The present action concerns what transpired in a room at the school normally used by Giorgi (Giorgi's room) at approximately 12:30 p.m. on March 6, 2018. ² The material allegations are as follows: "[The defendants] allowed [Hughes] to leave [Varecka's] classroom alone, unprotected and unsupervised. ... [The defendants] allowed [Hughes] to be unprotected and unsupervised in [Giorgi's room]. ... [The defendants] allowed a student hereafter referred to as ‘Alex’ to leave [Varecka's] classroom unsupervised. ... [The defendants] allowed Alex to remain alone and unsupervised in [Giorgi's room] and they allowed him to be present and unsupervised in that room when [Hughes] arrived there. ... [The defendants] allowed a dangerous metal object to be located in [Giorgi's room] within the reach of students, including Alex. ... [The defendants] allowed Alex and [Hughes] to be unsupervised and alone together when the board and its agents, servants and employees, including [Varecka] and [Giorgi], knew or should have known that Alex had aggressive tendencies, including aggressive tendencies toward [Hughes]. ... Varecka and [Giorgi] failed to communicate with each other, and/or with other agents, employees or servants of the board, to make sure that [Hughes] and Alex would not be alone together and unsupervised. ... [T]heir failure to supervise [Hughes] and ... Alex allowed Alex to strike [Hughes] with the metal object. ... [T]hey did not warn [Hughes] that she would find herself alone and unsupervised with Alex in [Giorgi's room]." The complaint further alleged that Hughes sustained "physical, emotional and psychological injuries, including facial lacerations and scarring, pain and shock" as a result thereof.

In each of the nine counts, the plaintiffs also alleged that the foregoing allegations "(A) [r]endered [Hughes] an identifiable person subject to imminent and foreseeable harm; (B) [w]ere apparent to [the defendants] or, in the exercise of reasonable due care and proper diligence ... were discoverable and should have been apparent to [them]; (C) [w]ere likely to have caused [Hughes] the harm that she sustained; (D) [p]resented a probable likelihood of harm to [Hughes] which was sufficient to place upon the [defendants] a clear, unequivocal duty to alleviate the dangerous conditions and circumstances; and (E) [r]equired immediate action by the [defendants] to prevent the harm which [Hughes] sustained."

Approximately six months after this action was commenced, the defendants moved to strike all nine counts of the complaint, alleging that the plaintiffs had "failed to state a claim for which relief can be granted because, as a matter of law, any duty allegedly breached by the defendants ... was discretionary." The plaintiffs filed an objection to that motion, in which they maintained that the identifiable victim subject to imminent harm exception to governmental immunity applied. In its November 24, 2021 memorandum of decision, the court disagreed with the plaintiffs and concluded that they had not alleged facts sufficient to implicate that exception. The court thus granted the defendants’ motion to strike the complaint in its entirety. When the plaintiffs failed to replead their case, as permitted under our rules of practice; see Tracy v. New Milford Public Schools , 101 Conn. App. 560, 566, 922 A.2d 280 (2007) ; the defendants filed a motion for judgment, which the court granted on February 28, 2022, and this appeal followed.

On appeal, the plaintiffs claim that the court improperly granted the motion to strike their complaint because the facts alleged therein sufficiently implicate the identifiable victim subject to imminent harm exception to discretionary governmental immunity. We disagree.

At the outset, we note the well established standard that governs our review. "[B]ecause a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling ... is plenary." (Internal quotation marks omitted.) Doe v. Cochran , 332 Conn. 325, 333, 210 A.3d 469 (2019). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc. , 264 Conn. 474, 476, 823 A.2d 1202 (2003). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim , 303 Conn. 205, 213, 32 A.3d 296 (2011). Furthermore, "where it is apparent from the face of the complaint that [a] 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) ; see also Violano v. Fernandez , 280 Conn. 310, 326, 907 A.2d 1188 (2006) (expressly declining "the plaintiffs’ invitation to abandon our well established practice permitting resolution of the issue of governmental immunity by a motion to strike").

Municipalities in this state generally are "immune from liability unless the legislature has enacted a statute abrogating such immunity." ³ Gaudino v. East Hartford , 87 Conn. App. 353, 355, 865 A.2d 470 (2005). The tort liability of a municipality is codified at General Statutes § 52-557n, which "abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages. ... One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties. ... [Section] 52-557n (a) (2) (B), however, 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." (Internal quotation marks omitted.) Martinez v. New Haven , 328 Conn. 1, 8, 176 A.3d 531 (2018). As our Supreme Court has explained, "a municipality may be held liable for the negligent performance of a duty only if ‘the official's duty is clearly ministerial.’ " (Emphasis in original.) Northrup v. Witkowski , 332 Conn. 158, 188, 210 A.3d 29 (2019) ; see also Doe v. New Haven , 214 Conn. App. 553, 564, 281 A.3d 480 (2022) ("a municipality may be held liable for its employee's negligently performed ministerial acts but is ... entitled to immunity for the performance of discretionary governmental acts"). At no time have the plaintiffs alleged that the conduct at issue in this case, which concerns the supervision of schoolchildren, is ministerial in nature. Because that conduct indisputably is discretionary in nature; see, e.g., Costa v. Board of Education , 175 Conn. App. 402, 407–408, 167 A.3d 1152, cert. denied, 327 Conn. 961, 172 A.3d 801 (2017) ; the defendants are entitled to governmental immunity unless an exception to that doctrine applies.

The protection extended to discretionary governmental acts is qualified by a "very limited" exception that "applies when the circumstances make it apparent to the [municipal] officer that his or her failure to act would be likely to subject an identifiable person to imminent harm .... By its own terms, this 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. ... If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." (Internal quotation marks omitted.) Strycharz v. Cady , 323 Conn. 548, 573–74, 148 A.3d 1011 (2016). "[P]ublic schoolchildren are ‘an identifiable class of beneficiaries’ of a school system's duty of care for purposes of the imminent harm to identifiable persons exception." Martinez v. New Haven , supra, 328 Conn. at 8–9, 176 A.3d 531. The defendants here concede that Hughes was an identifiable victim because she was a public school student at school during school hours when the alleged incident transpired.

The...