Purzycki v. Town of Fairfield

Page 937

708 A.2d 937

244 Conn. 101, 125 Ed. Law Rep. 684

Gary PURZYCKI et al. v. TOWN OF FAIRFIELD et al.

No. 15668.

Supreme Court of Connecticut.

Argued Dec. 11, 1997.

Decided March 17, 1998.

Theodore R. Tyma, Southport, for appellants (plaintiffs).

Tracey C. Kammerer, with whom, on the brief, were Matthew M. Hausman and Thomas J. Walsh, Jr., Southport, for appellees (defendant Joseph Walsh et al.).

Mary-Michelle U. Hirschoff, Bethany, filed a brief for the Connecticut Conference of Municipalities et al. as Amici Curiae.

Before CALLAHAN, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

BORDEN, Associate Justice.

The sole issue in this certified appeal is whether the plaintiffs failed to prove that the plaintiff Jason Purzycki (child) was subject to imminent harm, so as to come within an applicable exception to the doctrine of governmental immunity for discretionary acts performed by municipal employees. The named plaintiff, Gary Purzycki, filed this action as parent and next friend of the child, and on his own behalf for his medical expenses, against the defendants ¹ for injuries that the child had sustained when he was tripped by another student in a school hallway and suffered facial lacerations. The plaintiffs appeal from the judgment of the Appellate Court affirming the judgment of the trial court, which granted the defendants' motion to set aside the jury verdict for the plaintiffs. The plaintiffs claim that there was sufficient evidence for the jury to have found that the imminent harm exception to governmental immunity applied. The defendants contend that the plaintiffs failed to produce sufficient evidence to prove that governmental immunity did not apply. ² We agree with the plaintiffs and, accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court decision sets forth the procedural history, and the facts that the jury reasonably could have found. "The [child] was an eight year old second grade student at the Roger Sherman School in Fairfield. School rules required that teachers escort students to an all-purpose room, which served as a cafeteria during lunchtime. While eating lunch, the students were supervised by two adults. After eating lunch, the students were dismissed on a table by table basis to go to the playground for recess. To get to the playground from the lunchroom, the students proceeded down a hallway. The hallway was not monitored, but teachers in the classrooms abutting the hallway were instructed to keep their doors open in order to hear or see any activity in the hallway. This process was in accordance with the policies, rules and regulations promulgated by school officials.

"On June 13, 1989, at approximately 12:30 p.m., [the child], along with the rest of his class, was escorted to lunch by a teacher. After being dismissed for recess, [he] proceeded to his locker, where he removed his coat and hat. He then ran down the hallway, and, as he neared the exit door, another student extended his leg and tripped him. [The child] fell, head first, through the wire mesh window of the exit door and sustained injuries.

"The relevant procedural history is as follows. The plaintiffs filed a personal injury action against the defendants, sounding in negligence and nuisance. ³ The defendants alleged as a special defense that they were shielded from liability pursuant to the doctrine of qualified governmental immunity. After a trial, the jury rendered a verdict in favor of the plaintiffs. In answers to special interrogatories, the jury stated that the defendants were 60 percent negligent, the [child] was 40 percent negligent and the defendants' negligence subjected [him] to imminent harm. The defendants moved to set aside the jury verdict, asserting that the plaintiffs failed to prove their claim that the imminent harm exception to the qualified governmental immunity doctrine applied to this case. The trial court granted the defendants' motion and rendered judgment notwithstanding the verdict." Purzycki v. Fairfield, 44 Conn.App. 359, 360-62, 689 A.2d 504 (1997).

The Appellate Court was divided, with the majority deciding that the jury reasonably could not have concluded that the lack of supervision, standing alone, subjected the child to imminent harm as required for liability under the doctrine of qualified governmental immunity. Id., at 365-66, 689 A.2d 504. It concluded that the case was analogous to Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989). The majority determined that it was "[a] combination of the lack of supervision, [the child's] own conduct and the conduct of another student [which] caused the injuries," and as a result could "not rise to the level of imminence necessary to overcome the defendants' immunity." Purzycki v. Fairfield, supra, 44 Conn.App. at 366, 689 A.2d 504.

The dissent concluded, however, that the facts of the present case were more analogous to Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994). Purzycki v. Fairfield, supra, 44 Conn.App. at 368-69, 689 A.2d 504 (Heiman, J., dissenting). More specifically, because the question of the existence of imminent harm is a factual issue, and because there was sufficient evidence for the jury to have concluded that the lack of supervision subjected the child to a risk of imminent harm, the dissent concluded that the trial court should have rendered judgment in accordance with the jury verdict. Id., at 369-70, 689 A.2d 504 (Heiman, J., dissenting). Upon the plaintiffs' application, we granted certification to appeal limited to the following issue: "Was the trial court correct in setting aside the verdict on the ground that the plaintiffs failed to prove that the plaintiff child was subject to imminent harm, an exception to a municipal employee's immunity from liability when performing discretionary acts?" Purzycki v. Fairfield, 240 Conn. 926, 692 A.2d 1282 (1997).

I

The plaintiffs claim that the trial court improperly set aside the jury verdict in their favor. The plaintiffs contend that the jury correctly found that the imminent harm-identifiable person exclusion to the doctrine of governmental immunity was applicable to this case. Specifically, they argue that "[t]he danger of the ... child's unsupervised use of the school hallways during recess was of an imminent nature as it was limited to the one-half hour lunch recess of the second grade lunch period for each day the child was compelled by statute to be on school premises." Further, the plaintiffs emphasize, as Judge Heiman noted in his dissent, that " 'the principal of the elementary school admitted that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries.' " Quoting Purzycki v. Fairfield, supra, 44 Conn.App. at 367, 689 A.2d 504 (Heiman, J., dissenting). We agree with the plaintiffs.

"The trial court's function in setting aside a verdict and this court's role in reviewing that action are well settled.... The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles.... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion.... Limiting that discretion, however, is the litigants' constitutional right to have issues of fact determined by a jury where there is room for a reasonable difference of opinion among fair-minded jurors.... Because, in setting aside the verdict, the trial court has deprived the party in whose favor the verdict was rendered of [the] constitutional right to have factual issues resolved by the jury, we must examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion.... In so doing, we must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial...." (Citations omitted; internal quotation marks omitted.) Labbe v. Hartford Pension Commission, 239 Conn. 168, 191-93, 682 A.2d 490 (1996).

"Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. Evon v. Andrews, [supra, 211 Conn. at 505, 559 A.2d 1131]; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988). The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [A] municipal employee ... has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." (Internal quotation marks omitted.) Burns v. Board of Education, supra, 228 Conn. at 645, 638 A.2d 1. "[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court ... [unless] there are unresolved factual issues material to the applicability of the defense [where] resolution of those factual issues is properly left to the jury." Mulligan v. Rioux, 229 Conn. 716, 736, 643 A.2d 1226 (1994). ⁴

The plaintiffs concede that any duty owed by the defendants to the child was discretionary, not ministerial in nature. ⁵ Therefore, in order to prevail, the plaintiffs' claim must fall within one of the recognized exceptions to qualified immunity for discretionary acts. "Our cases recognize three such exceptions: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce...