Palosz v. Town of Greenwich

184 Conn.App. 201

194 A.3d 885

Anna Izabela PALOSZ, Coadministrator (Estate of Bartlomiej F. Palosz), et al.

v.TOWN OF GREENWICH et al.

AC 40315

Appellate Court of Connecticut.

Argued May 25, 2018

Officially released August 14, 2018

Brett R. Leland, pro hac vice, with whom were Harold J. Friedman, pro hac vice, and Fernando F. De Arango, for the appellant (defendant Board of Education of the Town of Greenwich).

David S. Golub, with whom were Jennifer Goldstein and, on the brief, Jonathan M. Levine, for the appellees (plaintiffs).

Bright, Moll and Sullivan, Js.

BRIGHT, J.

In this wrongful death action, the defendant, Board of Education of the Town of Greenwich,¹ appeals from the judgment of the trial court denying its motion to strike² the first count of the operative complaint filed by the plaintiffs, Anna Izabela Palosz and Franciszek Palosz, coadministrators of the estate of Bartlomiej F. Palosz (decedent), which stems from the decedent's tragic suicide. On appeal, the defendant claims that the court improperly concluded, as a matter of law, that it is not entitled to sovereign immunity from the plaintiffs' wrongful death claim, in which the plaintiffs allege, in part, that the defendant's employees failed to comply with the antibullying policy that the defendant developed and implemented pursuant to General Statutes (Rev. to 2011) § 10-222d, as amended by Public Acts 2011, No. 11-232, § 1.³ We affirm the judgment of the trial court.

In count one of the operative amended complaint⁴ (complaint), the plaintiffs allege the following relevant facts. The defendant serves as the agent of the town of Greenwich to maintain control of all of the public schools in Greenwich, which include Western Middle School and Greenwich High School. On August 27, 2013, after being subjected to unremitting bullying for several years in the Greenwich public school system, the decedent died by suicide on the first day of his sophomore year at Greenwich High School. At the time of his death, the decedent was fifteen years old and had been a student enrolled in the Greenwich public school system for seven years.

Throughout those years, the defendant was mandated by § 10-222d to develop and implement a safe school climate plan to address the existence of bullying in the Greenwich public school system. In compliance with this statutory mandate, the defendant adopted the "Whole Student Development Policy" (policy) in April, 2009, which later was strengthened in July, 2012. The policy requires that the defendant appoint administrators and specialists who are responsible for the development and implementation of the policy. The policy further mandates an employee who has knowledge of a bullying incident to notify, by an oral report, the specialist or another school administrator within one school day and to file a written report not later than two school days after such verbal notification. Upon receipt of a report, the policy requires the specialist to investigate, or to supervise the investigation of, the bullying incident. If the acts of bullying are verified, the policy requires the specialist or designee to develop a student safety plan to protect against further bullying, to notify the parents of the students involved not later than forty-eight hours following the completion of the investigation, and to invite the parents to a meeting to discuss the measures being taken to intervene. If there are repeated instances of bullying against a single individual, the policy requires the development of a specific written intervention plan. Moreover, the policy mandates that any students who engage in bullying behavior be subject to school discipline. In addition to the written policy provisions, the defendant has oral policies and procedures that require school employees to intervene to protect students from being bullied repeatedly.

During the time in which the policy was effective, the decedent was subjected to severe and continual verbal and physical bullying by his fellow classmates. Greenwich school employees, including supervisory employees, were "long aware" that the decedent was being subjected to such bullying. Despite being aware of said bullying, the defendant's administrators, and supervisory personnel, and other school employees⁵ did not comply with the mandatory provisions of the policy in that they failed to: report the repeated instances of bullying to the specialist or other school administrator orally and/or in writing within the required timeframes; investigate the repeated incidents of bullying; notify the parents of the findings of any such investigation; meet with the parents to communicate appropriate remedial measures being taken by the school to ensure the decedent's safety and to prevent further acts of bullying; develop a student safety support plan in response to all verified acts of bullying with safety measures to protect against further acts of bullying; develop a specific written intervention plan to address the repeated instances of bullying; direct appropriate discipline to the student or students who bullied the decedent; and properly oversee and implement the provisions of the policies and procedures.

The plaintiffs further allege that the defendant and its administrators, supervisory personnel, and other school employees, in failing to comply with the policy requirements, engaged in "gross, reckless, wilful or wanton misconduct," which was a substantial factor in causing the decedent's death by suicide. On the basis of the foregoing, the plaintiffs allege that the defendant is liable, pursuant to General Statutes § 52-557n,⁶ for the wrongful death of the decedent and for the related damages caused by the defendant and its administrators, supervisory personnel, and other school employees.

On July 6, 2016, the defendant filed a motion to strike the complaint.⁷ The defendant argued, in relevant part, that it is entitled to sovereign immunity because it was acting as an agent of the state when it allegedly "failed to carry out its state mandated duties under the antibullying statute ... § 10-222d et seq." Following a hearing, the court issued a memorandum of decision, dated March 21, 2017, denying the defendant's motion to strike. The court held that the defendant is not entitled to sovereign immunity because it was acting on behalf of the municipality, as opposed to the state, when it failed to comply with the policy. The court also held that there is no sovereign immunity protection for the defendant and its employees when their actions or omissions constitute gross, reckless, wilful, or wanton misconduct because the qualified immunity provided to them by General Statutes § 10-222l⁸ specifically limits sovereign immunity in that regard. This appeal followed.

We begin by setting forth the standard of review and legal principles that govern our resolution of this appeal. Notwithstanding the fact that the issue of sovereign immunity was presented to the court by way of a motion to strike, as opposed to a motion to dismiss,⁹ "[s]overeign immunity relates to a court's subject matter jurisdiction over a case, and therefore presents a question of law over which we exercise de novo review.... In so doing, we must decide whether [the court's] conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation , 293 Conn. 342, 349, 977 A.2d 636 (2009).

In Connecticut, "[w]e have long recognized the common-law principle that the state cannot be sued without its consent.... The doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." (Internal quotation marks omitted.) Henderson v. State , 151 Conn. App. 246, 256, 95 A.3d 1 (2014). "The protection afforded by this doctrine has been extended to agents of the state acting in its behalf.... Town boards of education, although they are agents of the state responsible for education in the towns, are also agents of the towns and subject to the laws governing municipalities." (Citations omitted.) Cahill v. Board of Education , 187 Conn. 94, 101, 444 A.2d 907 (1982). "[O]ur jurisprudence has created a dichotomy in which local boards of education are agents of the state for some purposes and agents of the municipality for others.... To determine whether the doctrine of sovereign immunity applies to a local school board, we look to whether the action would operate to control or interfere with the activities of the state ...." (Citation omitted; internal quotation marks omitted.) Purzycki v. Fairfield , 244 Conn. 101, 112, 708 A.2d 937 (1998), overruled on other grounds by Haynes v. Middletown , 314 Conn. 303, 323, 101 A.3d 249 (2014) ; see also Cahill v. Board of Education , supra, at 101–102, 444 A.2d 907 (local school board not entitled to sovereign immunity from claim of breach of employment contract because such action would not operate to control state's activities or subject it to liability).

Consistent with the foregoing, our Supreme Court specifically has held that "[a] local board of education acts as an agent of the state when it performs those duties delegated to it by the state.... A board of education acts as an agent of its respective municipality when it performs those functions originally entrusted by the state to the municipality that the municipality has subsequently delegated to the board of education ...." (Citations omitted; emphasis added; internal quotation marks omitted.) Board of Education v. New Haven , 237 Conn. 169, 181, 676 A.2d 375 (1996). For example, a local board of education acts as an agent of the state when it furnishes an education for the public pursuant to General Statutes § 10-220. See Cheshire v. McKenney , 182 Conn. 253, 257–58, 438 A.2d 88 (1980). Conversely, a local board of education acts as an agent of the...