Opinion
No. CV 06-5002923S
May 3, 2010
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The plaintiff Christina and a youngster named Paige were students at the Bethany Community School. They had known each other since kindergarten but relations between them deteriorated starting with the fourth grade. The incident causing injury to the plaintiff occurred during a recess period in the fifth grade. At that time the plaintiff alleges that Paige threw a rubber ball at the back of her head. The plaintiff claims this caused her severe injuries "leaving her with an acquired brain injury and "severe optical dysfunction." Common to the counts against each defendant, the town of Bethany, the Board of Education of Bethany, and Bethany Public School District, are the following allegations:
a) Failed to supervise Christina and Paige Woodward when it knew of should have known that Paige Woodward posed a danger to Christina;
b) Failed to supervise Christina and Paige Woodward when it knew or should have known of the likelihood of injuries when school children are left unsupervised;
c) Failed to make any effort to protect Christina from Paige Woodward when it knew or should have known that Paige Woodward posed an imminent danger to Christina;
d) Failed to follow its own policies related to bullying and failed to take steps to ensure that Christina could attend school in a safe environment free from harassment and bullying.
Each of the counts is made pursuant to section 52-577n of the General Statutes and alleges statutory negligence. Count one lies against the school district, count two is made against the Board of Education and count three lies against the town.
The Court will in very general terms set forth the argument made in the defendants' motion for summary judgment and then address each position and the arguments raised by the plaintiff.
(1)
The defendants first claim that the claims against them are barred by the doctrine of governmental immunity because they were engaged in not only public but discretionary behavior. It is argued that decisions regarding hiring, supervising, training and firing of municipal employees are discretionary. It is said that the defendants did not have a policy or directive at the school mandating the specific manner in which students were to be supervised during recess — this is left to the discretion and judgment of the Board. The defendant notes the plaintiff's allegation that the defendants failed to follow (their) own policies regarding bullying, but argue she "has offered no evidence to that effect."
The defendants then argue that safety is a discretionary act for which the defendants are entitled to governmental immunity.
The defendants further argue that the identifiable person imminent harm exception where discretionary acts are involved is not applicable to the claims being made. Furthermore the "the common law imminent harm exception to governmental immunity is inapplicable to the direct liability imposed against a municipality under C.G.S. § 52-557n."
Finally and perhaps more basically it is argued that the complaint fails to state a cause of action against the Town "which has no duty to supervise students."
(2)
The standards to be applied in assessing a motion for summary judgment are well known. If no material issue of fact is raised such a motion should be granted to avoid the burden and expense of litigation.
However, if a material issue of fact exists preventing the application of a principle of law that would bar the action, the motion should not be granted because a party has a constitutional right to a trial.
(3)
Before getting to a substantive discussion of the issues raised in light of the concept of governmental immunity the court will discuss two matters raised by the town which on the one hand argues that the identifiable person/imminent harm exception to governmental immunity does not apply to it and on the other hand argues that under basic negligence law a negligence claim does not lie against the town because the town has no duty to supervise students.
(a)
In a footnote 9 in Pane v Danbury, 267 Conn. 669, 667 (2004), the court, in what is clearly dicta said . . ." there is an exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself, "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 . . . Evon v. Andrews, 211 Conn 501, 505 . . . (1989)." The court went on to note the exception did not apply to the employee in Pane because the claim against him had been withdrawn. It appears the plaintiff did not raise this exception as it applied to her claim against the defendant municipality and the court otherwise held there was no legal basis for the invasion of privacy claim.
The Pane court did not mention or refer to Colon v. Board of Education, 60 Conn.App. 178 (2000) which explicitly held that nothing in the legislative language of § 52-577n could be read as "evidencing legislative intent to vitiate this exception" to governmental immunity — referring to the identifiable person/imminent harm exception. The court went on to hold that it did not construe the statute as "barring recovery from a political subdivision where this exception applies."
In a case post dating Pane, Doe v. Peterson, 279 Conn 607 (2006), a town employee was accused of molesting a youngster, and the town of Wethersfield filed a motion for summary judgment which was granted by the trial court. The plaintiff had argued that the identifiable person/imminent harm exception provided an exception to the town's governmental immunity for discretionary acts. The court rejected the plaintiff's argument saying the exception did not apply given the facts of the case before it. Logic dictates the court would have accepted the plaintiff's argument if the qualifications for application of the exception had been met, otherwise why did it go on for seven pages discussing whether or not the exception applied.
The matter was finally settled in Grady v. Somers, 294 Conn. 324 (2009); the court said: "we agree with the plaintiff and conclude that the identifiable person, imminent harm exception to qualified immunity for an employee's discretionary acts is applicable in an action brought under § 52-557n(a) to hold a municipality directly liable for those acts," id., page 332.
All of this is not a surprising result since it has been assumed that the relevant portions of § 52-557n codify the common law in defining the permissible ambit of liability of municipalities despite governmental immunity claims, see Guguano v. Milford, 106 Conn.App. 648, 653 (2008), Martel v. Metropolitan District Commission, 275 Conn. 38, 48 (2005) and the identifiable person/imminent harm exception was created at common law, Evon v. Andrews, 211 Conn 501, 505 (1989).
The court cannot dismiss the claim against the town on this ground.
(b)
The defendant also makes the argument that the town has no duty to supervise students. As the town points out a duty to a plaintiff is one of the essential elements of a cause of action RV Construction Inc. v. Fusco Corp., 23 Conn. 381, 384 (1994). It is also true that the existence of a duty is a question of law, id. The answer to this question rests on an examination of the state statutes for the purpose of examining what entities have the responsibility for the supervision of children.
The general law seems to be "that the furnishing of an education for the public is a state function and duty . . . this duty is placed upon the state by article eighth § 1 of the State Constitution and is delegated to local school boards by state statute . . . there is no question but that local boards of education act as agencies of the state when they are fulfilling the statutory duties upon them pursuant to the constitutional mandate of article eighth, § 1 . . ." Cheshire v. McKenney, 182 Conn 253, 257-58 (1980).
But in certain respects local boards of education "are also agents of the municipalities that they serve . . ." id., page 258. The court goes on to quote an earlier case to the effect that "the state in the exercise of its policy to maintain good public schools, has delegated important duties in that field to the towns" id. and cites § 10-240 CGSA that says: "each town shall through its board of education maintain the control of all the public schools within its limits."
The court goes on to note that board members are invested with the powers of their office by municipalities, local boards submit budgets to the towns, local board members are, in effect, officers of the town, id., pp 259-60. But it is a fair reading of the case to say that these powers of the towns may not be so exercised as to interfere with state authorized and mandated statutory responsibilities imposed on boards of education.
What are the statutory duties insofar as relevant to the issues raised by this case as to school discipline and supervision. Section 10-220 imposes no such duty on the towns; it talks in subsection (3) of a board of education's duty to provide "a safe school setting." But read in context this language refers to the physical safety of the building to children and people using it. The Superior Court cases cited by the defendants are consistent with this view when they hold that towns have no duty to ensure that particular physical conditions at a school which caused injury to a child and thus dismiss damage actions against the town.
However, § 10-221 CGSA does state that boards of education "shall prescribe rules for the management, studies, and discipline of the public schools." The statutory scheme evinces state concern with matters of school discipline, see § 10-233b (removal of pupils from class); § 10-233c (suspension of pupils); § 10-233d (expulsion of pupils). Section 10-233e states boards of education shall inform pupils and their parents or guardians "of the board policies governing student conduct and discipline." Section 10-233f deals with in school suspension of pupils and their reassignment.
The court concludes that in matters of discipline and supervision this duty on Boards of Education not towns so that in this sphere the boards act as agents of the state not the town. The net result of all this is that the towns have no duty with regards to the discipline and supervision of students and the count against the town is dismissed.
More to the point the legislature enacted § 10-222d and in passing § 10-222d the legislature mandated that "each local and regional board of education shall develop and implement a policy to address the existence of bullying in its schools . . ." The effective date of the statute was July 2002. The statute was in effect on the date of this March 2004 incident. The Bethany School District adopted its policy regarding bullying October 9, 2002 a bare two months after the effective date of the statute and clearly in response there to. The claims against the town should therefore be dismissed.
4
As to the claims against the Board and the Public School District, their claims of governmental immunity rest on principles discussed in CT Page 9897 Cotto v. Board of Education, 294 Conn 265 (2010). Although speaking of liability of municipal employees the discussion applies to claims against these two government entities since the employees at the school in charge of school discipline and supervision of students were agents of these defendants.
The defendants make no claim that these principles would not apply to them in weighing the issue of governmental immunity they just argue that the plaintiff has not established the exceptions to it. The Cotto opinion said the following at pg 272-73:
Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. Id. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. Gauvin v. New Haven, 187 Conn. 180, 184 (1982) . . . A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized 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 certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence . . .
The Court will first discuss the plaintiff's claim that ministerial acts were involved here so the motion cannot be granted. It will then discuss whether if discretionary acts were involved the suit may still proceed because of the identifiable person/imminent harm exception to immunity for discretionary acts.
(a)
The first issue the court will try to address is the claim by the plaintiff that the defendants are liable for the "misperformance of ministerial acts." As noted the plaintiff claims that the school authorities misperformed ministerial acts; their conduct was ministerial in nature. The school board adopted a policy regarding "Bullying and Hazing" two years before this incident. The plaintiff argues in this case the defendants "failed to follow their own policy; for this reason, their acts were ministerial and not discretionary in nature." Before examining the actual policy to see if it supports this view the court will discuss the distinction between ministerial and discretionary actions.
As noted in Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68 (1988) . . . "ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the property of the action," see also Gavin v. New Haven, 187 Conn. 80, 84 (1982). Violano v. Fernandez, 280 Conn. 310 (2006) expands on this theme in its discussion of prior case law. It noted in Colon v. New Haven, 60 Conn.App. 178 a child was injured when a teacher opened a door which struck him. The court in that case properly decided that the teacher was not performing a ministerial function. As Violano noted this was true "because the plaintiff's complaint failed to allege the existence of any directive describing the manner in which the teacher was to open the door," 280 Conn. at page 324. The court also cited Segretto v. Kristoe, 71 Conn.App. 844, 857 (2002) where the court noted the complaint contained no allegation that the defendant city had a policy or directive in place regarding those duties which it or its employees had failed to comply, id. On the other hand Violano also cited Koloniak v. Board of Education, 28 Conn.App. 277, 281-82 (1992) which it characterized as concluding governmental immunity was inapplicable "where school maintenance personnel failed to comply with a board of education bulletin directing them to inspect and keep walkways clean on daily basis," 280 Conn. at page 384. In Violano itself the court said the plaintiffs failed to allege facts that the acts or omissions complained of were ministerial. Where stored property was stolen the city employee was not required by any city charter provision, ordinance, rule, regulation, or directive to secure property stored in a city controlled building; — the owner thus had no claim superseding governmental immunity, 280 Conn. page 323.
Connecticut's law is in accord with the general law in this area see 57 Am.Jur.2d, "Municipal, County, School and State Tort Liability" in § 76 defines "ministerial act or function" as follows:
Although almost any act of government involves some exercise of discretion, not all acts are immune. Ministerial acts are not afforded immunity, as a political subdivision remains liable for the negligence of its employees at the operational or ministerial level, where there is no room for policy judgment. Such acts are secondary decisions related to the ordinary day-to-day operations of the government. They are acts which are defined as absolute, certain, and imperative, involving merely the execution of an established policy, rule, or practice, a specific duty arising from fixed designated facts, or a set task imposed by a law prescribing and defining the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. A ministerial function entails and insignificant element of choice, or minor decision-making where the individual has little or no choice, and it is performed in a prescribed manner without the exercise of judgment or discretion as to the property of the action.
Interestingly in Section 77 of the Am.Jur. Article which discusses "examples of ministerial acts," Lang v. Bay St. Louis/Waveland School, 764, 502d 1234 (Miss. 1999) is cited as a case holding "a school's statutory duty control and discipline students" (is a ministerial act). There the plaintiff's child was injured as a result of his attempt to flee a fight at the school. The Court cited several state statutes regarding duties imposed on schools to maintain discipline, id. page 1239. The court overturned the trial courts granting of the school's motion to dismiss but it noted the statutory duties and seemed to turn the issue into one of a question of fact which barred summary dismissal — The plaintiff "could prove a set of facts to support her claim that she was owed a duty, the breach of which should incur liability," id. page 1242.
This raises the basic issue presented by this case — is the ministerial discretionary standard a question of fact or law. If it is the former summary judgment is inappropriate.
Section 72 of the Am. Jur. article discusses the method by which a court should decide if a ministerial act or omission is involved. It says at pages 101-02.
. . . whether the acts giving rise to a complaint are discretionary or ministerial is a fact question to be decided on a case by case basis, since while it may create the illusion of a clear cut standard, in reality it represents a spectrum rather than a standard. A good starting point is to first consider whether the government employee or agency has an element of choice and course of action which was not specifically prescribed by statute, regulation or policy, and whether the act in question involved broad policy factors.
The article then says that "generally speaking, the distinction can be explained by asking whether the act in question is one that is simple, absolute and definite, arising under conditions admitted or proved to exist, and requiring merely execution of a specific duty, or whether it calls for the exercise of personal deliberation and judgment which in turn entails examining facts, reaching reasoned conclusions and acting on them in a way not specifically directed." The article cites Gauvin v. New Haven, 187 Conn. 180, 186 (1982) which says whether, for example, the operation of a city park "(is) governmental or ministerial is a factual question which depends on the nature of the act complained of." The court went on to say in a case where a man was injured falling from an allegedly defective swing — "at trial the director of the New Haven Parks and Recreation Department testified as to the operation of city parks generally and Lighthouse Park in particular as it related to the maintenance and repair of the defective swing. This testimony could have provided an adequate basis for the trial court to determine whether the acts complained of were ministerial or governmental and whether the defense of governmental immunity could have been sustained."
The court will try to apply these general principles to the issue of non-performance of a ministerial duty in this case. The plaintiff relies on a policy statement adopted by the Bethany Public Schools on October 9, 2002. It is titled "Bullying/Hazing." It defines bullying as "any overt acts by a student or a group of students directed against another student with intent to ridicule, humiliate, or intimidate the other student while on school grounds or at a school sponsored activity which acts are repeated against the same student over time."
In section III it says in relevant part:
a. No student, volunteer contractor or employee of the school district shall encourage, permit aid, consent or tolerate bullying . . .
d. The school district administration will investigate all complaints of bullying and will discipline or take other appropriate action against any person who is found to have violated this policy.
Section IV states any school employee "with knowledge or belief of conduct that may constitute bullying, whether by witnessing such conduct or by receiving student reports of bullying shall report the alleged acts immediately to an appropriate school district official designated by this policy." Subsection B states that "the building administration is responsible for receiving reports of bullying at the building level . . ." and subsection C states the building administration "will notify the superintendent and the director of Pupil Services of any reported incidents of bullying." Subsection D says that:
D. Teachers, administrators, other employees of the school district, volunteers and contractors shall be particularly alert to possible situations, circumstances or events which might include bullying. Any such individual, who receives a report of, observes, or who otherwise acquires knowledge or belief of, conduct which may constitute bullying must inform the building administration immediately.
Section V reads as follows:
V. School District Action
A. Upon receipt of a complaint or report of bullying school officials shall undertake or authorize an investigation.
B. If upon investigation it is determined that bullying has occurred the superintendent or his/her designee will take appropriate action. Such action may include, but is not limited to, warning, detention, suspension, or expulsion. Disciplinary consequences will be sufficiently severe to deter violations.
C. The Parents or guardians of students who engage in acts of bullying and the parents or guardians of students against whom such acts were directed shall be notified by the superintendent or his/her designee of the results of the investigation. The notification shall include a description of the response of school staff to such acts and any consequences that may result from the commission of further acts of bullying.
D. A list of verified number of acts of bullying shall be maintained and shall be available for public inspection.
E. The superintendent shall be responsible for developing an intervention strategy for school staff to deal with bullying.
Attached to the opposition to the motion for summary judgment is a power point presentation used in teacher training. It is dated May 1, 2002 and is entitled "Bullying Academy." One section is entitled "what educators can do." Among other things it states educators can "assess the scope of the problem," "closely monitor playground activity and be visible," "never overlook intentionally abusive acts" "provide support and, if necessary, protection for bullying targets."
Given the foregoing; this issue is difficult to decide at least for the court. Even our court has noted that the distinction between ministerial and discretionary acts is sometimes difficult to determine and even a ministerial act so defined may involve the exercise of some discretion, see Violano v. Fernandez, 280 Conn. at page 327.
Reading the October 2002 policy statement alone it might be difficult to conclude that a detailed method of behavior was laid down for administrators and teachers for dealing with bullying depriving them of any judgment or discretion, or that, as the Am.Jur. article indicates, actions were dictated to deal with the problem that involved "merely the execution of an established policy." But the power point presentation especially the section on what educators can do fleshes out what may be an operative and detailed policy. The affidavit of Ms. Federico supports this view. She describes herself as the "Upper Housemaster Principal of Bethany Community School." Her affidavit indicated an operative policy was in effect at or around the time of the incident. A copy of an investigative report of the incident in question is attached to her affidavit and a reporting system. At one point she says prior to March 15, 2004 the school never received a complaint that Paige was bullying Christana but then from paragraph 18 on lists a series of steps taken in response to complaints about Paige's activity on responses to them — all of which seem to parallel the suggested steps laid down in the power point presentation and the October 2002 policy as regards bullying. Interestingly for the purposes of later discussion Federico goes into some detail about supervision during recess, presumably with one of its purposes being to prevent bullying and hazing.
The court prefers to err on the side of caution and leave the facts on this issue to be further developed at trial thereby avoiding the risk of putting both these children through the need for a second trial if it were held the court erred in concluding now that a claim of ministerial activity cannot be made.
CT Page 9903
(b)
Assuming the conduct of the defendants is regarded as not ministerial but discretionary and governmental the plaintiff cannot prevail unless, in this case, the misconduct "would be likely to subject an identifiable person to imminent harm," Doe v. Peterson, 279 Conn. 607, 616 (2006). As Peterson notes the test requires that each of the following three matters be proven (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 harm. The most recent decision on this concept is Cotto v. Board of Education, 294 Conn. 265, 273 (2009).In Cotto the court said "the identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims as well as identifiable individuals," 294 Conn. at 274. Discussing prior case law the Cotto court said "the criteria of identifiable person and imminent harm must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." The court went on to quote another case to say that: "For the purposes of the imminent harm exception . . . it is impossible to be an identifiable person in the absence of any corresponding imminent harm," 294 Conn. at page 276.
The court reads these statements as saying that as long as the necessary relationship to the imminent harm requirement is kept in mind, which helps define the foregoing aspect of the rule, the only identifiable class of foreseeable victims recognized is that of school children attending school during school hours. But if a clearly identifiable person, child or adult, is exposed to imminent harm then the exception could apply also if that individual is exposed to imminent harm. This result follows from Tryon v. North Branford, 58 Conn.App. 702 (2000) where the court said "an individual may be 'identifiable' for purposes of the exception to qualified immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition," id., page 710, cf with Evon v. Andrews, 211 Conn. 501 (1989).
As to the imminent harm part of the exception to governmental immunity equation in addition to the just quoted language from Tryon the court would also refer to recent language in Cotto. The Cotto court referred language in Lyon v. Andrews, supra, and Doe v. Peterson, 279 Conn. 607 (2006) and said the following at page 276:
CT Page 9904
For the harm to be deemed imminent, the potential for harm must be sufficiently immediate. In fact, "the criteria of identifiable person and imminent harm must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person. See, e.g., Evon v. Andrews, supra, 211 Conn. 508 (the class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of identifiable persons) . . . For the purposes of the imminent harm exception . . . it is impossible to be and identifiable person in the absence of any corresponding imminent harm." (Internal quotations marks omitted.) Doe v Petersen, supra, 279 Conn. 620-21. Indeed, we have found imminent harm only in the clearest case.
As said in Lyon v. Andrews, 211 Conn. 508. "The adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society."
Finally as a procedural matter, Judge Dupont in Tryon made a very useful observation for trial judges seeking to apply the foregoing substantive observations at 58 Conn.App. 715-16:
There is a difference between the existence of a duty and a violation of that duty. The existence of a duty is a question of law whereas whether there was a breach of that duty is a question of fact . . . We have concluded, as a matter of law, that Turner (defendant municipal employee), owed a duty to the plaintiff because she was an identifiable person. Whether that duty was violated because he placed her in imminent harm is a question of fact, see Gordon v. Bridgeport Housing Authority . . . 208 Conn. 171.
Assuming discretionary activity is involved here the court will now try to apply the foregoing to the facts here to determine whether the identifiable person-imminent harm exception to governmental immunity for such acts applies.
(i) CT Page 9905
Even a cursory reading of the factual observation made in the beginning portion of the defendants' memorandum attached to their motion indicates that the plaintiff child was an identifiable person subject to possible harm from her fellow student Paige in a school setting in which both children were required to be present. The factual allegations repeated in that discussion and advanced in the plaintiff's brief and attachments indicate what is commonly called bullying over an extended period of time. The plaintiff reported this pattern of behavior to teachers. The Federico affidavit is interesting in this respect. It states that prior to the March 15, 2004 incident in question where Christina alleges she was injured by Paige "the school never received a complaint that Paige was bullying or threatening Christina . . ." But prior to the March incident Federico goes on in several paragraphs to indicate Christina complained Paige would talk about her to other girls. The complaints, it is said were investigated. And apparently they were regarded as serious enough to place the youngsters in separate classes for the Fifth Grade. At one time Federico said she met with both girls to "mediate their conflicts." She told Christina to stay away from Paige. Ms. Federico has a much narrower definition of bullying, it would seem, than the definition of that term in the school systems own bullying policy where it says in section IIA, "Definitions" that "bullying means any overt acts by a student or a group of students directed against another student with intent to ridicule, humiliate, or intimidate the other student while on school grounds." This refers to the language of Section 10-422d of the general statutes which also defines bullying. The plaintiff says prior to the March 2004 incident Paige would call her "Dumbo" because of her big ears, engage in other "mean stuff," picked on her, tapped on her desk to annoy the plaintiff, bump into her in the hallways. Christina said she reported this to teachers; Ms. Federico said "each complaint of Christina's was investigated" given a school's obvious responsibility to protect students from bullying and the legislative interest in seeing that this be accomplished it would be impossible for this court at least to conclude that the plaintiff was not identifiable to school authorities as a person subject to harm — this is not Shore v. Stonington, 187 Conn. 147 (1982).(ii)
The imminent harm component, related as it is to the identifiable person requirement, is not so unfocused or generalized as to make it a situation like Cotto where there is no temporal limit on the possible harm that might be inflicted and the geographical limit seems obvious. That is why, it appears, defendants spent so much time on underlining why the school spent so much time on supervising recess. Teachers were aware of the problem presented by Paige's interactions with Christina, so much so that they gave them different seating assignments and then different classes. The recess period, common sense would seem to dictate, is at a limited time of day in a defined area. There is a claim of adequate supervision but that is not for the court to decide on a motion for summary judgment. Christina, for example, said the aides assigned to monitor recess were "inside" when the incident happened — "nobody saw what happened" — at times they "would kind of huddle and talk there (in a corner.)"
The appellate courts have relaxed the identifiable person requirements as regards school children — they are a foreseeable class to be protected. As regards application of the imminent harm requirement of the exception to governmental immunity we are discussing, this Court must assume that a similarly protective attitude will be applied in examining the imminent harm requirement — bullying is condemned by state statute, children must attend schools, children are not as capable of defending themselves, they are vulnerable in the entire school area where unsupervised conduct prevails, and the bullying concept includes, before the adequacy of supervision is addressed factually, a particular child subject to these acts.
For the foregoing reasons the motion is denied.