Opinion
No. CV-04-0104139 S
October 11, 2005
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This case concerns allegations of sexual misconduct by a teacher, Lori Parisee, upon the plaintiff, during the period from January of 1993 through June of 1996, when Parisee was either the plaintiff's fifth grade teacher or, later, a substitute teacher. In addition to the present case, there is a companion action which is pending against Parisee herself.
The present action is in two counts, the first of which alleges claims of vicarious liability against the Town and its board of education. In the second count, the plaintiff has brought a direct claim against the defendants, alleging failure to supervise and negligent supervision, pursuant to Connecticut General Statutes § 52-557(n). The defendants have moved for summary judgment as to both counts. They argue, as to the first count, that, because the acts of Parisee as alleged in that count indisputably fall outside the scope of her employment, these defendants may not be held vicariously liable. They further contend, as to the second count, that Parisee's acts, which must be deemed criminal or intentional, cannot create liability pursuant to § 52-55(n) and that because the claims against the defendants involve discretionary acts on their part, they are protected by governmental immunity.
At oral argument, the plaintiff conceded that the defendants were correct with regard to their contentions as to the first count. He therefore withdrew his objections and agreed that judgment should enter in favor of the defendants on that count as a matter of law.
The second count, in which the plaintiff seeks damages against the defendants based on their own alleged negligence, is brought pursuant to Connecticut General Statutes § 52-557(n), which imposes liability on municipalities for negligent acts or omissions which result in damage to persons or property: "[A] political subdivision of the state shall be liable for damages to person or property caused by: (A) the negligent acts or omissions of such political subdivision . . ." Connecticut General Statutes § 52-557(n)(a)(2)(B), however, exempts such entities from liability when the negligent acts or omissions complained of "require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
Municipal "liability may attach for negligently performed ministerial act, but not for a negligently performed . . . discretionary act." Romano v. City of Derby, supra at 629 (quoting Kolaniak v. Board of Education, 28 Conn.App. 277, 281 (1992)). "The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." Lombard v. Peters, 252 Conn. 623, 628 (2000). "The determination of whether the act complained of constituted a ministerial or governmental act is a matter of law for the court to decide" on a motion for summary judgment. Redfearn v. Ennis, 28 Conn.App. 398, 401 (1992). In Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180 (1988), for example, the court held that "the deployment of police officers is a discretionary governmental action as a matter of law" as is the provision of emergency medical services to the public. Brock Hall Dairy Co. v. New Haven, 122 Conn. 321 (1937). "Negligence in failing properly to enforce applicable statutes, regulations and/or codes, to make reasonable and proper inspections of a multifamily rental unit for fire safety hazards, and to prescribe remedial action to be taken by owners, were `acts [that] required in some measure the exercise of judgment by a municipal employee' and `were not ministerial.'" Glorioso v. Police Dept. of the Town of Burlington, 49 Conn.Sup. 200, 204-05, 38 Conn. L. Rptr. 365 (2004). Finally, in Jane Doe v. Board of Education of the City of New Haven, 76 Conn.App. 296, 300 (2003), the court held that "the duty of the defendant to supervise students is a discretionary, governmental duty."
Connecticut courts have routinely held that an employer's conduct regarding the supervision and/or investigation of its employees is also discretionary as a matter of law. "Extensive and near unanimous precedent in Connecticut clearly demonstrates that the acts or omissions alleged in plaintiff's complaint — the failure to screen, hire, train, supervise, control and discipline — are discretionary acts as a matter of law." Hughes v. City of Hartford, 96 F.Sup.2d 114, 119 (D.Conn. 2000). See, also, Doe v. Lasaga, 2004 Conn.Super. LEXIS 594, Superior Court, Judicial District of New Haven, Docket No. CV 99 0430858 (March 10, 2004, Arnold, J.).
In a case similar to this one, Doe v. Petersen, 2004 Conn.Super. LEXIS 3598, Superior Court, Judicial District of Hartford, at Hartford, Docket No. CV 02 0820770 S (November 30, 2004) (Shapiro, J.), the plaintiff had participated in a tennis instruction program offered by the town, and the defendant was employed by the town to conduct and supervise various recreational activities, including tennis. The plaintiff alleged that one day Petersen offered to give her a ride home and that, while in the car, he sexually assaulted her. The plaintiff later reported the incident to Pitkin, the director of parks and recreation. In granting the town's motion for summary judgment, the court found that
After hearing Doe state that Petersen "offered me a ride home, only he didn't take me home," Pitkin made a judgment that the situation sounded like a misunderstanding and told Doe to work it out with Petersen. This denotes the use of discretion in interpreting what Doe was telling him. His decision not to investigate the matter further was made based on his determination of the situation as a misunderstanding.
Despite the fact that the plaintiff reported the incident to Pitkin, the court held that the town was entitled to governmental immunity as a matter of law. See also Stiebitz v. Mahoney, 144 Conn. 443, 449 (1957) (police chief immune from liability for negligently hiring police officer who sexually assaulted two women; alleged conduct by police chief characterized as involving the "exercise of discretion").
The word "ministerial" refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. Burns v. Board of Education, 228 Conn. 640, 645 (1994). Section 10-151(b) of the Connecticut General Statutes requires "the superintendent of each local or regional board of education, in accordance with guidelines established by the State Board of Education . . . to continuously evaluate or cause to be evaluated each teacher." The plaintiff therefore argues that the Town and its board of education had no discretion not to conduct a continuous teacher evaluation. Assuming that this contention is true, the defendants' reply is that the manner in which such an evaluation is conducted is discretionary. In particular, the manner in which the defendants are to respond to an ambiguous statement, in which Parisee allegedly stated that she "might have crossed the line" with the plaintiff, surely requires as much discretion as was required of Pitkin in the Petersen case. Although in Ambrose v. Singe, 19 Conn. L. Rptr. 639, 1997 WL 338561 (G10 1997) Stodolink, J., a superior court denied summary judgment in a case involving failure to discipline a student for prior threats against the plaintiff, where that student eventually slashed the plaintiff with a knife, the court there had concluded that there were questions of fact as to how much discretion school officials actually had in handing out discipline.
The only evidence proffered by the plaintiff in this case as suggesting a duty to act on the part of the defendants is a highly ambiguous conversation that Parisee allegedly had with a colleague, Carol Ann Corcores, in which Parisee stated that she "might have crossed the line" with the plaintiff. There was absolutely no other evidence presented in connection with the present motion to suggest any other way in which the defendants would be in any way on notice of any inappropriate conduct between Parisee and the plaintiff. This single statement, whatever it might have meant, was provided to Cocores with no context that would have suggested that she or the named defendants had a ministerial duty to act in response to such a statement.
The plaintiff also contends that the "identifiable victim" exception to governmental immunity applies to this case. "Where the circumstances make it apparent to the public officer that his or her failure to act would be likely to object an identifiable person to imminent harm," there is an exception to a municipal employee's qualified immunity for a discretionary act. Burns v. Board of Education, 228 Conn. 640, 645 (1994); Purzycki v. Town of Fairfield, 244 Conn. 101, 106 (1998). The plaintiff argues, correctly, that where there are facts that suggest that the identifiable victim exception might apply, summary judgment is inappropriate. Burns, supra, 228 Conn. 640, 650-51. The cases offered by the plaintiff in support of the applicability of this concept to the present case, however, are readily distinguishable, involving, for example, a child being tripped by another student in an unsupervised hallway, CT Page 13550 Purzycki v. Town of Fairfield, 244 Conn. 101, 111 (1998); a constant parade of inappropriate over-aged visitors to a teacher's classroom and instances where the teacher was locked in the classroom with students with the intercom turned off, Little v. Booth, 1987 WL 120289 (February 28, 1997), (Sullivan, J.); and a student slashed by a student who had threatened plaintiff on previous occasions, Ambrose v. Singe, 19 Conn. L. Rptr. 639, 1997 WL 338561 (June 10, 1987, Stodolink, J.). The ambiguous statement that Parisee "might have crossed the line," with no other context, could have referred to a host of non-threatening scenarios and is hardly sufficient to form a basis for believing that the plaintiff was an identifiable individual, or a member of an identifiable group of individuals, subject to imminent harm. See Colon v. City of New Haven, 60 Conn.App. 176 (2000).
Because the undisputed facts demonstrate that any duty on the part of the defendants to supervise Parisee in some particularized way would involve discretionary acts by the defendants, and because the undisputed facts exclude the plaintiff from the category of "indentifiable individuals subject to imminent harm," the defendants are entitled to judgment in their favor as to the second count as a matter of law.
For all of the above reasons, the defendants' motion for summary judgment is granted in its entirety.
Jonathan E. Silbert, Judge