Jahn v. Bd. of Educ. of Monroe

152 Conn.App. 652

99 A.3d 1230

Spencer JAHN

v.BOARD OF EDUCATION OF the TOWN of MONROE et al.

No. 35997.

Appellate Court of Connecticut.

Argued May 14, 2014.

Decided Sept. 9, 2014.

Marc J. Ubaldi, Shelton, for the appellant (plaintiff).

Mark A. Perkins, Bridgeport, for the appellees (defendants).

LAVINE, KELLER and SCHALLER, Js.

Opinion

KELLER, J.

In this negligence action, the plaintiff, Spencer Jahn, appeals from the decision of the trial court granting summary judgment in favor of the defendants, Board of Education of the Town of Monroe (board) and Thomas Harkins, the head coach of the swim team at Masuk High School in Monroe. The plaintiff claims that the court erred in granting the defendants' motion for summary judgment on the basis of governmental immunity. The plaintiff argues that summary judgment was improperly granted as there was a genuine issue of material fact as to whether, at the time of his injury, he was an identifiable person subject to imminent harm, a recognized exception to governmental immunity.¹ We disagree and affirm the judgment of the trial court.

The court's memorandum of decision describes the undisputed factual background relevant to the plaintiff's appeal. “On December 19, 2012, the plaintiff ... a member of the boys' swimming team at Masuk High School in Monroe ... filed a one count complaint sounding in negligence against the defendants.... The plaintiff's central claim [was] that Harkins, by failing to properly supervise warm-up drills conducted by the swimming team prior to a swim meet, subjected the plaintiff to imminent harm.

“In his complaint, the plaintiff allege[d] the following facts. On December 17, 2010, at approximately 3:30 p.m., the plaintiff was participating in warm-up drills at the direction of Harkins prior to a swimming competition at Masuk High School. Specifically, the defendant had directed the members of the swimming team to practice their racing starts by diving into the pool and swimming several lengths. Harkins did not, however, personally supervise the drills nor did he appoint another individual to do so. Pursuant to Harkins' previous instruction, the plaintiff dove into the pool and swam several lengths before turning around and heading back to the pool wall. At the same time, another member of the swimming team² dove into the pool, striking the plaintiff and causing him several severe injuries, including injuries to the plaintiff's head and neck.

“The plaintiff allege[d] that at all relevant times Harkins was acting as the agent or employee of the [board] and was responsible for supervising the activities of the swimming team. The plaintiff allege[d] further that his injuries were caused by the negligence of Harkins in that he (1) left the swimming team unsupervised during the warm-up drill, (2) directed the team to perform a drill that was not safe because multiple swimmers were permitted to dive into the same lane, and (3) failed to ensure that a coach was present during the drill to indicate when it was safe for swimmers to dive into the pool. The plaintiff also allege[d] that, by virtue of being a student at Masuk High School, he was an identifiable person subject to imminent harm.” (Footnotes altered.)

On March 27, 2013, the defendants filed an answer and three special defenses, including the contributory negligence of the plaintiff; common-law governmental immunity as to Harkins, a municipal employee; and governmental immunity as to the board, as provided by General Statutes § 52–557n.³ The plaintiff did not file a reply to the defendants' special defenses.

The defendants filed a motion for summary judgment on May 1, 2013. Therein, the defendants argued (1) “there are no genuine issues of material fact ... as to the fact that the defendants are immune from liability under the [doctrine] of governmental immunity,” and, in the alternative, (2) Harkins “is not a real party at interest in this lawsuit.”⁴ The defendants' motion was accompanied by a memorandum of law and three affidavits: that of Harkins; that of John DeGennaro, the director of athletics at Masuk High School; and that of Thomas Jurzynski, the assistant coach of the boys' swim team.⁵ On June 17, 2013, the plaintiff filed an objection to the motion for summary judgment, accompanied by a memorandum of law and an affidavit by the plaintiff.

The court heard oral argument on June 18, 2013, and filed a written memorandum of decision granting the motion for summary judgment on August 2, 2013. The court concluded that there was no genuine issue of material fact that the doctrine of governmental immunity was applicable because (1) Harkins' conduct as a swim coach and the board's conduct in supervising him were public and discretionary, rather than ministerial acts, and (2) the identifiable person-imminent harm exception to the doctrine of governmental immunity did not apply to the plaintiff. On appeal, the plaintiff challenges only the court's conclusion that the identifiable person-imminent harm exception does not apply to him.

We begin with the relevant standard of review concerning motions 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.... The test is whether a party would be entitled to a directed verdict on the same facts.... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.... Our review of the trial court's decision to grant a motion for summary judgment is plenary.” (Internal quotation marks omitted.) Thivierge v. Witham, 150 Conn.App. 769, 773, 93 A.3d 608 (2014).

“[Practice Book § 17–49 ] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17–45 ].” (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 704–705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).

We briefly review the doctrine of municipal governmental immunity in Connecticut to understand the context of the plaintiff's claim. “At common law, a municipality generally was immune from liability for its tortious acts, but its agents and employees faced the same personal tort liability as private individuals.... In the early twentieth century, our courts extended qualified immunity to municipal employees as well.... Eventually, the personal liability of public officers acting in the scope of their office came to depend on whether the acts or omissions in question were discretionary or ministerial in nature.... In 1986, our legislature enacted § 52–557n, which allows a municipality to be held liable for the negligent acts of its employees under certain circumstances.... Under the relevant statutory provisions, a municipality's liability in negligence for its employees' acts hinges on the same ministerial-discretionary dichotomy.” (Citations omitted.) Thivierge v. Witham, supra, 150 Conn.App. at 774, 93 A.3d 608.

“The issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law.” (Internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262, 268, 41 A.3d 1147 (2012).

The availability of governmental immunity as a defense depends on two factors: (1) whether the employee's action was public or private in nature, and (2) whether the employee was engaged in a discretionary or governmental act, versus a ministerial act. See Violano v. Fernandez, 280 Conn. 310, 334–35, 907 A.2d 1188 (2006). “[T]he test to discern between a public and private duty is as follows: [i]f the duty imposed upon the public official by the statute is of such a nature that the performance of it will affect an individual in a manner different in kind from the way it affects the public at large, the statute is one which imposes upon the official a duty to the individual, and if the official is negligent in the performance of that duty he is liable to the individual.” (Emphasis omitted; internal quotation marks omitted.) Id., at 333, 907 A.2d 1188. In Couture v. Board of Education, 6 Conn.App. 309, 313, 505 A.2d 432 (1986), this court held that the board of education's sponsoring of a football game was a public duty. In reaching this conclusion, this court opined: “Pursuant to their duty to provide public education, the town boards are given substantial discretion to determine educational policy.... Included in this authority is the power to decide that sporting events are a necessary or desirable part of the town's educational program.” (Citation omitted.) Id., at 313, 505 A.2d 432.

The second factor to be determined is whether the official acts or omissions are ministerial or discretionary. This is normally a question of fact, “although there are cases in which it is apparent from the complaint that the alleged negligent actions or omissions necessarily involved the exercise of judgment and were discretionary as a matter of law.” Haynes v. Middletown, 122 Conn.App. 72, 79, 997 A.2d 636 (2010), rev'd on other grounds, 306 Conn. 471, 50 A.3d 880 (2012). In this case, the plaintiff concedes that the defendants' actions were discretionary in nature. Spe...