Opinion
No. CV 01-0454589 S
July 11, 2008
MEMORANDUM OF DECISION
The court will go into more detail in discussing the facts of the case as it becomes necessary in the opinion but will briefly give the factual background. The plaintiff worked for Latino Youth Development, Inc., which during the summer of 1999 was permitted to use facilities at Roberto Clemente School for a youth program. On July 16, 1999, he was on the premises with the youngsters who had just finished breakfast in the school cafeteria and were about to head off for their activities. A count was done for the children and two youngsters were unaccounted for. The plaintiff went to a bathroom near the cafeteria to look for the boys, stepped in and immediately fell causing an alleged injury to his knee. He claims to have slipped on urine that was on the floor. He says that he complained about this condition on previous occasions.
The plaintiff brought suit against Dr. Mayo the Superintendent of Schools, Principal Leroy Williams, the New Haven Board of Education, and the City of New Haven.
A motion for summary judgment was previously filed by the defendants which the court denied except as to the plaintiff's right to bring a direct cause of action against the school board under § 10-235 of the general statutes.
A trial was held to the court on the plaintiff's claims which the court will now discuss.
(1.)
The court will first discuss what might be called the legal mechanisms which might be considered a predicate to its addressing the claim of negligence.
Regarding any claims against defendants who are city employees or agents, to paraphrase Evon v. Andrews, 211 Conn. 501, 505 (1989) a CT Page 11562 municipality was generally immune from tort liability at common law but its employees faced the same general liability in tort as private individuals. But employees have a qualified immunity except where he/she performs a ministerial act — that is an act "performed in a prescribed manner without the exercise of judgment or discretion," id. If the employee is engaged in the performance of a discretionary act then the employee has immunity and the city would not be subject to an indemnification action under sect 7-465 of the general statutes.
Three exceptions have been established to immunity claims based on discretionary activity allegedly negligent in nature, Shore v. Stonington, 187 Conn. 147, 153-55 (1982). Under the facts of this case the only exception to discretionary act immunity would be the so-called "identifiable person I imminent harm" exception.
Another possible theory of negligent liability under § 52-557n would lie under subsection (a)(1)(B) which provides for liability for "(B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit." This codifies a common-law exception to municipal immunity recognized over the years by our case law, see Horrigan v. Norwich, 77 Conn. 358, 365 (1904); Richmond v. Norwich, 96 Conn.App. 582, 588 (1921); Abbot v. Bristol, 167 Conn. 143, 150 (1974); Elliot v. Waterbury, 245 Conn. 385, 413 (1998) and Martel v. Metropolitan District Comm., 275 Conn. 38, 53 (2005) rely on the codification of this common law set forth in subsection (a)(1)(B).
The advantage to a plaintiff in being able to rely on negligence in the performance of a proprietary function is that it may prevent the municipality and possiblly its employees from relying on the discretionary activity exception to immunity also set forth in § 52-557n. The court in Elliot v. Waterbury, supra at 245 Conn. page 410, footnote 16 specifically said it did not need to reach this question. However, there are persuasive reasons to say that the discretionary activity defense should not be available to a municipality engaged in a proprietary function. A fairly extensive discussion of the proprietary activity exception to governmental immunity takes place in 57 Am.Jur.2d "Municipal, County, School, and State Tort Liability," §§ 47-66, pp 82-97. Nowhere is there any case law cited to indicate a municipality engaging in proprietary activity can defend on the ground of discretionary activity being involved in the context of the proprietary function. To hold otherwise would defeat the purpose of the doctrine; as said in § 53 of the ALR article: . . ." some courts have observed that a "purely governmental function" is undertaken by the government for the protection and safety of the public pursuant to the general police powers, while, a `purely proprietary function' is a governmental activity that substitutes for or supplements a traditionally private enterprise. In other words a governmental function is one that is discretionary, political, legislative or public in nature and performed for the public good in behalf of the state. In contrast, the proprietary activities undertaken by the government are those that are commercial or chiefly for the private advantage of the compact community," id., pp. 87-88. Or perhaps more to the point at § 55, page 90 it says, speaking of the test for governmental or proprietary activity,: "The theory underlying this test is that a `proprietary function' entails those acts performed for the special benefit of the municipality in that it provides local necessities and conveniences to its own citizens rather than acts performed for the common good of all by the governmental unit as agent of the state."
If the governmental entity, in a particular endeavor, acts just as any other profit making commercial entity, it is difficult to see what advantage would accrue to the public at large by granting immunity for discretionary activity. Besides insofar as such proprietary activities compete with private enterprises offering the same or similar services it would give governmental entities so acting an unfair competitive advantage.
Nothing in the language of § 52-557n appears to contradict the foregoing analysis. In subsection (a)(2)(B) which bars liability for discretionary acts the prefatory language says "Except as otherwise provided by law" . . . there shall be no liability for negligence which requires discretion. The "otherwise provided by law" language must refer to the whole body of common law just discussed. And if the legislature did not regard negligence as a special subcategory of negligence claims in general why did they feel a special need to give it a separate listing in subsection (a)(1)(B)?
Applying the foregoing to the specific facts and history of this case, on the motion for summary judgment the court held that since the plaintiff attested to the fact that the Latino Youth Development had a lease with the city to use the school it could not rule out his reliance on the proprietary function claim which would ban reliance on the discretionary activity exception to governmental immunity.
At trial, however, the only evidence presented was to the effect that Latino Youth Development paid no fees for the use of the school facilities and even the breakfast provided to the youngsters was paid for by federal funding. Given the limiting nature of the definition of proprietary function in § 52-577n(a)(1)(B) — the political subdivision must derive "a special corporate profit or pecuniary benefit — the court now concludes that this action cannot be brought for negligence in operating a proprietary function so that the discretionary activity — exception to liability is available.
(2)
To prevail in an action against the city under § 52-557n, therefore, the plaintiff cannot rely upon subsection (a)(1)(B) providing for recovery in negligence in the performance of proprietary functions. He must proceed under (a)(1)(A) allowing liability for damages for injuries caused by "(A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his (her) employment or official duties."
If § 52-557n is read in its entirety one approach is to conclude that it is only after negligence has been established that the court need look at subsection (a)(2) which says in relevant part "(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly granted by law." It should be said that whether negligence can be established here and whether, it having been established, governmental immunity should bar liability are not completely separate inquiries when the identifiable person/imminent harm exception to immunity is asserted. In any event the court will first address the issue of negligence.
(a)
A premises liability claim is basically a negligence claim — it is a negligence action grounded in premises liability and a plaintiff must meet the essential elements of such an action. Baldwin v. Curtis, 105 Conn.App. 844, 848 (2008).
For the court, at least, this is a very close case in which an appellate court could easily disagree with this court's result.
The court accepts the plaintiff's rendition of the facts that he fell on a water and urine covered bathroom floor just as he stepped into the bathroom.
The first issue to be addressed is whether Mr. Cotto was a licensee or an invitee on the school property. This will determine the scope of the duty owed to the plaintiff. Trial testimony indicated that the Latino CT Page 11565 Youth Development (the program) paid no rent or fees to the Board or the City for use of the facilities during this summer program. However, the Chief of Staff of the Board testified that in order to use the premises application forms had to be filled out which she reviewed. Ms. Pacini wanted to make sure there was appropriate supervision of the children and that the program was benefiting the children. From her perspective the benefit of the summer programs was that the children were kept off the street and they would have a learning experience. She said the schools are community based and Board policy was to make community based programs feel comfortable in the schools. The Board has its own programs but recognizes that some parents want their child in a community based program. They service children and Ms. Pacini said: "We want all our children to be in a safe environment and learning." She noted city paid janitors were charged with the responsibility to clean up the cafeteria where breakfast was served and to maintain the bathrooms.
The principal, Mr. Williams, testified. He works at the school year round, even during summer months when the community based programs use the facilities and he said that he and maintenance had a regular inspection schedule to check the bathrooms which he knew were to be used, for example, by Latino Youth Development children. Young kids were involved and he wanted to make sure bathrooms were clean. He said if he were aware of a problem in the bathroom he would fix it immediately — "bathrooms are something you just can't let go." As to these responsibilities there was no difference between the school year and summer when the programs used the school. During the school year 800 children use the school, during the summer 200 to 300 are in the various programs.
Mr. Cotto certainly expected school authorities had the responsibility to keep the premises safe — he testified he made several complaints about the wet bathroom floors.
Given these facts on the issue of "licensee" or "invitee" what is the applicable law? Our state seems to rely on the Restatement (2d) Torts definitions of "licensee" (§ 330) and "invitee" (§ 332), State v. Mention, 12 Conn.App. 258, 261 (1987), Corcoran v. Jacovino, 161 Conn. 461, 465 (1972). The Restatement defines a licensee as a person who is privileged to enter or remain on land only by virtue of the possessor's consent. In § 332 an "invitee" is defined in two categories as follows "(2) a public invitee is a person who is invited to enter or remain on land as a member of the public for the purpose for which the land is held open to the public (or) (3) a business invitee (who is defined as) a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land."
There does not seem to be much question that this program does not meet the Restatement definition of "public invitee." The property is not open to the public at large, cf. Moore v. Greensburg High School, 773 N.E. 2d 367, 370-71 (Ind.App. 2002). A screening process by the school authorities was the mechanism by which any particular program applicant would be able to use the facilities.
The question is whether this program can meet the definition of business invitee under § 332(3). No Connecticut cases are directly on point but in Stitt v. Holland Abundant Life Fellowship, 614 N.E. 2d 88, 95 (Mich., 2000) the Michigan Supreme Court said:
In harmonizing our cases, we conclude that the imposition of additional expense and effort by the landowner, requiring the landowner to inspect the premises and make them safe for visitors, must be directly tied to the owner's commercial business interests. It is the owner's desire to foster a commercial advantage by inviting persons to visit the premises that justifies imposition of a higher duty. In short, we conclude that the prospect of pecuniary gain is a sort of quid pro quo for the higher duty of care owed to invitee. Thus, we hold that the owner's reason for inviting persons onto the premises is the primary consideration when determining the visitor's status: In order to establish invitee status, a plaintiff must show that the premises were held open for a commercial purpose.
But that rigid limitation on ambit of an owner of premises to protect people entering its land seems to be an unwarranted even under the Restatement definition. How else to explain the general observation in comment a to § 332 of the Restatement that: "Invitees are limited to those persons who enter or remain on the land upon an invitation which carries with it an implied representation, assurance or understanding that reasonable care has been used to prepare the premises, and make them safe for reception." Prosser in his work on Torts, 5th edition at § 61, page 424 also has an interesting comment which goes with Michigan's view only so far. He says:
Anyone invited to transact business or do work on private premises not open to the public normally has the assurance that the place is prepared for him; but one who come to volunteer assistance, although he confers a benefit, is treated as a licensee, unless the circumstances indicate he has reason to expect protection in return.
The previous rendition of the facts given by the court indicates, at least to it, that the various programs using these schools would have had the understanding and have received the assurance that this premises would be kept reasonably safe for use. The school authorities acted throughout the summer as if they had this responsibility, Cotto as supervisor of the children and their welfare believed he had such assurances — why else would he make complaints about the bathroom's condition. The school and the city received a benefit from the operation of these programs; the "business" of the schools is to protect the safety of and enhance the learning opportunities of city children. Staff, including custodial staff were maintained on the payroll to do just that during the summer months while these programs operated. Furthermore, giving invitee status to children using the premises and their supervisory personnel in these program who are entrusted with ensuring the childrens' safety and encouraging the learning process offered by these programs, increases the protection that children and those entrusted with their welfare can expect. The notion that special consideration should be given to the welfare of children is not at odds with "our case law that had traditionally recognized that children require special consideration when dangerous conditions are involved," Burns v. Bd. of Education, 228 Conn. 640, 650 (1994), cf. Neal v. Shiels Ins., 166 Conn. 3, 11 (1974).
As noted the Restatement definition of "invitee" under § 332 has been referred to by our courts but the precise issue as to the ambit of that definition has not been addressed. Even if the court's position that Cotto should be regarded as an invitee can be said to depart from a literal reading of the Restatement there is nothing requiring that the Restatement be regarded as a straight jacket. Other states have more broadly defined "invitee," see 62 Am.Jur.2d, Premises Liability, § 85 pp. 461-62, even the quote from Prosser indicates that that worthy commentator strains at the tether which a strictly commercial analysis to § 332 would require. Perhaps we should focus not as Michigan does on the commercial quid pro quo making greater protection afforded by invitee status acceptable but on the requirements for added protection for certain more vulnerable classes — i.e. children, the disabled, the elderly, and people entrusted with their care.
(b)
What is the duty owed to an invitee? The court will quote from cases that have dealt with this issue. In Baptiste v. Better Val-U Supermarkets, Inc., 262 Conn. 135, 140 (2002) the court said:
It is undisputed that the plaintiff in this case was a business invitee of the defendant and that, consequently, the defendant owed the plaintiff a duty to keep its premises in a reasonably safe condition Typically, "[f]or the plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." (Citations omitted.) In the absence of allegations and proof of any facts that would give rise to an enhanced duty; cf. Furstein v. Hill, 218 Conn. 610, 624, 590 A.2d 939 (1991) (noting that "under certain circumstances a heightened duty to the licensee can arise"); the defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.
The courts have further elaborated on the concept of notice. In Cruz v. Drezek, 175 Conn. 230, 235 (1978) the court said, quoting from an earlier case, "that the notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it . . ." It has also been said that "the determinative question is whether the defective condition existed for such a length of time that the defendant . . . should have discovered and remedied it." Grignano v. Milford, 106 Conn.App. 648, 652 (2008).
But as to constructive notice the court had this interesting comment in Warren v. Stancliff, 157 Conn. 216, 219 (1968).
Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant . . . Therefore, when a possessor of land fails to make or to have made a reasonable inspection which would have disclosed the dangerous condition, his negligent ignorance is in the eyes of the law equivalent to actual knowledge . . .
Along these lines Judge Devita decided a case called Bentley v. Hamden Post 88, Inc., 27 Conn.Sup. 56, 229 A.2d 32 (1965). In that case the plaintiff attended a picnic and when carrying various items to a trash can, he stepped on a board with a nail protruding from it and injured himself. The board was apparently attached to a railing and was easily dislodged. The defendant owner of the premises had knowledge of this dangerous condition "which required attention on almost a daily basis. On the day of the picnic, no inspection was made of this railing to see that it was affixed properly." The court went on to hold that "the defendant is not relieved of liability by claiming it did not have actual knowledge that day as to whether the rail was turned over or not. The court finds that the defendant had constructive notice of this upturned rail," 27 Conn.Sup. at pp. 58-59.
There is a final factor that must be taken into account — the duty to warn. In Warren v. Stancliff, supra, the court also said that: "The possessor of land has no duty to warn an invitee of a dangerous condition when the invitee has actual knowledge of the condition . . . The failure to warn an invitee of something he already knows is without legal significance," 157 Conn. at page 220.
The court will now try to apply the foregoing to the facts of this case. Cotto testified about 60 children were enrolled in the program, but on some days only 25 would come, however. The two youngsters who could not be accounted for because they were still in the bathroom and whom the plaintiff went to look for were seven and eight years old, so presumably some very young children were involved in the program. Also, Mr. Cotto said he complained about the wet conditions in the bathroom assigned to his program on several occasions. He said he tripped on a wet floor as he entered the door leading from the hallway. There is no doubt he was injured, and no one was presented to say on the morning of the incident they examined the floor and it was not wet. There is no reason to believe Cotto fell on a dry, fairly level floor or more to the point he struck the court as a truthful witness. The defense called a witness to the stand who took various measurements in the bathroom. From what the court could understand of his testimony, given the fact of the slant of the floor any water should have gone into a floor drain. But, Mr. Nelson, a custodian who worked at Clemente in 1999 said any water would have run against the wall where the sinks and urinals were located. Mr. Nelson had an interesting thing to say, however. He testified that night crews cleaned and mopped the bathrooms every night and any water would have dried by morning but sometimes the night crews hosed down the bathrooms.
Cotto said on several occasions he complained to a secretary in the main office or to the main office that the bathroom assigned to his program was dirty. There was urine on the floor. He did this before this incident. When he fell on this occasion he said his clothes smelled of urine. Dr. Williams, the principle, said he received no written complaints about this bathroom and had no memory of receiving an oral complaint. But, as a candid witness, he said in the summer months there are people assigned to the main office where he apparently works who are not part of his staff. Since it is unclear to the court as to whether he had an adequate reporting system set up for the summer months when as he said some twenty summer programs were using the school.
The custodian who testified said that Dr. Williams had the custodians check the bathrooms at 10:00 a.m. but the children left the cafeteria at 9:20 a.m. and would use the bathroom before they went outside for recreation.
Dr. Williams testified he inspected the bathrooms every morning when he came to work which was around 8:00 a.m. But he had no present memory of inspecting this bathroom on the morning of the incident. An interesting absence in his testimony is any question on direct or cross examination to indicate whether his morning inspections ever revealed the night crews failed to do their job.
The custodian testified that given the floor layout, for urine to collect near the door where Cotto slipped someone would have had to urinate right there. But although kids will be kids, to use the vernacular, it is difficult to believe children using the bathroom that very morning would do this in a location they would have to walk through to exit. The explanation harmonizes all the evidence, — the prior complaints, Cotto's testimony that he slipped on a wet floor and his clothes smelled like urine, no proof the bathroom was inspected in the morning before use — is that the bathroom was inadequately cleaned the night before. Given the complaints there was a failure to adequately inspect in light of a continuing problem and the reasoning of Warren v. Stancliff, supra, and Bentley v. Hamden Post 88, Inc., supra, would seem to apply.
The duty to warn aspect of the law is tied in directly with any claim of contributory or comparative negligence. Cotto complained about the dangerous condition so he must accept blame in negligence for failing to protect himself from a danger which should have been apparent to him.
On the other hand at the point he went to enter the bathroom he was looking for missing children aged 7 and 8 years old. He could have just opened the door and observed that they were in the bathroom but if the floor was wet should he have told them to exit and run the risk of slipping themselves? But it is true that he could have been more cautious as he entered the bathroom given the fact that he had reason to suspect the floor might be wet. The court concludes negligence has been established but any award should be reduced by 20 percent for comparative negligence.
(c)
But the individual defendants have argued that the alleged failure to mop away the substance from the bathroom floor, to warn of its condition, or inspect it all involve the exercise of discretion which gives them immunity, of Evon v. Andrews, supra, 211 Conn. at pp. 506-07. They also argue that the identifiable person/imminent harm exception to immunity for such acts does not apply citing Evon v. Andrews, supra Burns v. Bd. of Education, 228 Conn. 640, 646 (1994); Purzvcki et al v. Town of Fairfield, 244 Conn. 101, 110 (1998). The plaintiff argues that the exception does apply relying on Tryon v. North Branford, 58 Conn.App. 702, 710 (2000), of Prescott v. Meriden, 273 Conn. 759, (2005).
To the court at least the identifiable person/imminent harm exception is difficult to apply and the nuances developed by appellate decisions are often fact specific to those cases. This is all complicated by the fact that not many other jurisdictions seem to have adopted this exception to municipal immunity as specifically framed by our courts so that there is no safe refuge for a poor trial court to run to when faced with a factual situation not encountered in our appellate decisions. In its conclusion on this issue the court can readily envisage reversal of its decision in light of the specific language of Bums v. Bd. of Education, 228 Conn. 640 (1994) which the court will refer to and the recent case of Durant v. Bd. of Education, 284 Conn. 91 (2007). However, it is also true that whether this exception applies is a question of law, Prescott v. Meriden, 273 Conn. 759, 763-64 (2005), Burns v. Bd. of Education, 228 Conn. at page 646.
It is necessary to be exact in this sometimes confusing area. But Prescott v. Meriden, 273 Conn. 759, 763 (2005) explicitly notes that there are really two exceptions to governmental immunity under the sometimes generalized identifiable person/imminent harm exception. There the court said that: "The plaintiff concedes that the defendant's conduct was discretionary, and the plaintiff does not claim he was an individual for purposes of the exception to the governmental immunity doctrine. Thus the plaintiff may prevail only if he comes within an identifiable class of foreseeable victims." (Emphasis by this court.)
There seems to be little question that discretionary activity was involved here. The plaintiff cannot rely on being in an identifiable class of foreseeable victims. If that were the case, Durant v. Bd. of Education, 284 Conn. 91 (2002) would present real problems for the plaintiff's position and if held to apply here would defeat this reliance on the exception to governmental immunities. In Durant the plaintiff mother had enrolled her child in an after school program conducted "under the auspices of the Board of Education pursuant" to statute, § 17b-737, id., 284 Conn. page 92. The mother tripped on a puddle of water that had accumulated on the outside staircase of the school. The court held that the plaintiff could not take advantage of the identifiable class of foreseeable victim's exception to governmental immunity. The court referred to "the narrow common-law view of the exception, id., page 107 saying in Burns the court noted school children were in the protected class because they were intended to benefit from duties of care imposed on school officials by the law (2) they were required to attend school and their parents were required to relinquish custody of them to those official and (3) children required special consideration in the face of dangerous conditions, id.
The court then seemed to use a fortiori reasoning by assuming that since the child injured by negligence would not be able to fall within the protected class neither could the mother who went to pick her son up at the school. It pointed out that there is a great difference between regular school attendance which is required and attendance in an after school program albeit that such attendance is encouraged. An interpretation of the exception "that would embrace such voluntary activities would constitute an expansion in abrogation of common law . . .," id., page 109.
Applying Durant's reasoning it could be said that if the mother there could not take advantage of an exception to governmental immunity under the foreseeable victim/imminent harm exception how could someone in the plaintiff's position, who might be said to be in loci parenti and was employed as a supervisor in the voluntary Latino Youth Development program, properly rely on the exception?
But, as noted, the plaintiff can rely upon the identifiable person exception, see Prescott v. Meriden, supra and compare language in Burns v. Bd. of Education, 228 Conn. 640, 646 (1994) where the court said "we have construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." The court will now discuss the facts as they apply to this exception.
The school authorities knew these programs involved children, the Board Chief of Staff who testified said supervision was one of the concerns that was looked in reviewing program applications to use Clemente school for their programs. Mr. Cotto was a supervisor of the program. Very young children were at least part of the Latino Youth Program, as noted, the children Cotto went to look after in the bathroom were seven and eight. It is clear that a supervisor of such young children doing a count in the hallway of a school would have an immediate obligation to look for children found to be missing from the count. An obvious place for Cotto to first look would be the bathroom assigned by school authorities for use by his program. This is the bathroom of which the court has found Cotto made complaints as being dirty and covered with urine which presented a danger of causing someone to slip-not only students but supervisors engaged in their supervisory capacity of looking for children whose welfare was committed to them. Entering a bathroom with a wet floor presents a danger of imminent harm to a person entering it and the harm realized itself. And if appropriate supervision were not a concern to school authorities in considering whether to allow a program to use school facilities, why did they consider it? Furthermore, the imminent harm characterization here does not entail placing an unreasonable burden on governmental authorities which is evidently the reason for the requirements — this bathroom was only 50 or 60 feet from the main office of the school on the first floor thereof. Inspection would have been simple, non-time consuming, necessitated by prior complaints, all in the context of insuring the safety and health of children and those charged with their safety — i.e., the very individuals the school authorities required if the summer programs were to use the school in the summer. In fact the children finished their breakfast around 9:20, were allowed to go to the bathroom, then were let outside to a field apparently for exercise. But the custodian was told to inspect the bathroom at 10 a.m.
The court concludes that the identifiable person imminent harm exception to governmental immunity applies to the action against the individual defendants and will not permit them to assert immunity.
Damages
In light of the foregoing, the court will discuss damages. The economic damage claims are straight forward and do not appear to be seriously contested. As a result of this accident the court finds the plaintiff incurred damages for medical treatment in the amount of $18,227.83. He also was out of work for 13 weeks as a result of the accident and post operative recuperation. His wages were $518.06 per week for a total claim of $6,734.78. The court determines economic damages to be $24,962.61.
Non-economic damages are more difficult to determine given the facts of this case and the medical reports submitted. Mr. Cotto was operated on September 22, 1999 for ACL and MCL tears to his knee. He could not be operated on until the swelling went down so that from the time of the accident until surgery he was immobilized, his knee was unstable and he was in pain. After surgery Cotto claims to have had a lot of swelling and "a little bit of fever but mostly that was it." He also had some pain after the operation. Injuries to his head and elbow did not result in permanent injury. As a result of the accident he lost a semester of schooling.
The interesting thing to note in this case is that Mr. Cotto injured his knee several times before and after this accident. He had three surgical procedures before this accident and afterward two surgeries due to other incidents.
The doctor gave him a 25% permanent partial disability to the left knee as a result of this accident. But he also received a 25% permanent partial disability as a result of a November 1995 accident for which he underwent surgery in January 1996. Throughout the history of the incidents of injury to the knee prior to this and afterward he experienced various symptoms such as pain, instability of the knee, etc. There has been no evidence presented that the 1999 Clemente incident aggravated a prior knee condition or that the Clemente incident made him prone to or contributed to the causation of later accidents or exacerbation of injuries caused by that accident. There is an unexplained remark in the September 22, 1990 operative report under "post operative diagnosis" which says as to left knee anterior cruciate ligament and medical collateral ligament "recurrent tear." But no latter report ties up this "diagnosis" with actual injuries and operations occurring in 2003 and 2007. It should also be noted that the first of his two surgeries after the surgery for this injury was in 2003.
The only life style changes he notes as a result of this injury and surgery are an inability t ski and play basketball which he enjoyed doing and which he did after the previous three surgeries predating the September 1999 surgery in this case
But the medical reports indicate other factors the court must take into account. On October 29, 1999 letter from Doctor Diana, his orthopedic surgeon indicated he was doing "extremely well, He is only a month out and he walked in without even having a limp." Some swelling was noted and discomfort when he stays on the knee for a while. In January 2000 the doctor noted some discomfort but the range of motion was good and there was no instability in the knee. He was reported to have done some swimming and "some land activity (undefined) as well." He tried to play basketball but the Doctor told him to hold off on things like that. In March the doctor notes Cotto was being careful with his activity level but says he's walking well. He was to continue with an exercise program and with a brace. In September 2000 he reported discomfort with his left knee.
In November 2000 when the doctor gave him his disability rating on this case the doctor noted scarring on his knee and some swelling due to the graft presumably part of the medical procedure associated with the operation for this accident. Cotto also had some weakness in the quadriceps and hamstrings but it is not clear whether and to what extent it is due to the Clemente accident as opposed to prior accidents. No significant degenerative changes were noted.
A final letter dated October 10, 2001, from the doctor states as a result of the Clemente accident it was not recommended that he participate in competitive turning and twisting sports "such as basketball, football, and the like. The patient, with a brace, certainly can participate in sporting activities at a tempered pace but he is not able to participate at a competitive level." This does not seem to bar non-competitive basketball or skiing. In any event he was injured and had operations in 2003 and 2007 but the court does not know the extent and consequences of those matters and cannot tell whether the limitations as a result of the Clemente incident would be considered to be in effect even after those operations or whether those incidents carried their own superseding limitations. The court awards non-economic damages from the fall to and including the operative procedures in the amount of $15,000 and post operation to the future in the amount of $35,000 for a total of $59,962.61 which should be reduced by 20% for comparative negligence.
The court will enter judgment after discussing the liability of the various defendants.
Judgment
The court will enter judgment against the named individual defendants in the amount indicated at the end of this opinion, but must discuss the situation of the other two defendants.
The amended complaint purports to make claims against the City and the Board of Education under § 52-557n. In Spears v. Garcia. 263 Conn. 22, 37 (2003) the court held that a direct claim can be made against a municipality under § 52-557n. As to the claim against the Board of Education in Delgado v. New Haven CV 05-40078515 (2007) Judge Thompson held that at the trial level: "Boards of Education have been uniformly held to be `political subdivisions of the state' for the purposes of negligence claims under § 52-557n." In Gaizler v. Pagani, 43 Conn. L. Rptr. 518 (2007) Judge Tobin reached the same result after a thorough analysis of various state statutes and reference to the dicta in State ex rel Maisano v. Mitchell, 255 Conn. 256, 263 (1967) where the court said:
The term "political subdivision" is broad and comprehensive and denotes any division of the state made by proper authorities thereof, acting within their constitutional powers, for the purpose of carrying out a portion of those functions of the State which by long usage and the inherent necessities of government have always been regarded as public.
In light of the court's decision on the qualified immunity issue and the applicability of the exception to it, the court need not reach the question of whether the city or the board who have statutory immunity are subject to the identifiable person/imminent harm exception. Dicta in footnote 9 of Pane v. City of Danbury, 267 Conn. 669 (2004) suggest this may be the law but Colon v. City of New Haven, 60 Conn.App. 178, 188 (2000) suggest to otherwise; Also see, Doe v. Bd. of Education, 76 Conn.App. 296, 305-06 (2003). A city or board of education as political subdivisions can act only through people who are its agents so why should the exception not apply? In any event the following judgment is entered against all defendants.
TBTABLE Economic Damages: $24,962.61 Non-economic Damages: $35,000.00 Total: $59,962.61 TB/TABLE
There is a twenty percent reduction in the total judgment due to comparative negligence.