Bonamico v. City of Middletown

706 A.2d 1386, 47 Conn. App. 758, 1998 Conn. App. LEXIS 65
CourtConnecticut Appellate Court
DecidedFebruary 24, 1998
DocketAC 16562
StatusPublished
Cited by18 cases

This text of 706 A.2d 1386 (Bonamico v. City of Middletown) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bonamico v. City of Middletown, 706 A.2d 1386, 47 Conn. App. 758, 1998 Conn. App. LEXIS 65 (Colo. Ct. App. 1998).

Opinion

Opinion

O’CONNELL, C. J.

The plaintiffs1 appeal from the partial judgment in favor of the defendants rendered [759]*759on the trial court’s order striking counts one through twelve of the fourteen count complaint.2 They claim that the trial court improperly failed to apply the identifiable person-imminent harm exception to the governmental immunity doctrine.3 We affirm the judgment of the trial court.

The minor plaintiff, Rosamaría Bonamico, was a student at Woodrow Wilson Middle School on November 25, 1992. On that day, she was walking down a corridor in the school and was struck in the eye with a “bean/ pea/pellet” that had been thrown in her direction by fellow student Asa Black. Black had just come from a home economics session during which he, along with the other students, learned how to make bean bags. Black failed to return some of the beans in his possession and instead took them with him out of the classroom and into the corridor.

[760]*760The school had a policy that required all teachers to be physically present and visible in the hallway to supervise the students as they changed class periods. The plaintiffs alleged that codefendant Mary Ann Vinci, Black’s home economics teacher, failed to comply with this policy and, as a result, caused the minor plaintiff to suffer injury to her left eye.

The defendants moved to strike counts one through twelve of the fourteen count complaint for failure to state claims upon which relief could be granted. In granting the motion to strike, the trial court held that all counts pertaining to the movants were barred by the doctrine of governmental immunity. More specifically, the trial court held that the defendants’ duties were discretionary in nature4 and, because the complaint did not allege any facts to show how the defendants might have known that “this minor plaintiff was in imminent danger of this type of harm,” the plaintiffs “failed to allege facts sufficient to support the conclusion that the minor plaintiff was an ‘identifiable’ person subject to ‘imminent harm’ by merely passing through this hallway between classes.” (Emphasis in original.)

“Conclusions of law, absent sufficient alleged facts to support them, are subject to a motion to strike. The trial court may not seek beyond the complaint for facts not alleged, or necessarily implied, and this court will not.” Fortini v. New England Log Homes, Inc., 4 Conn. App. 132, 134-35, 492 A.2d 545, cert. dismissed, 197 Conn. 801, 495 A.2d 280 (1985). An examination of the complaint in the present case discloses that the plaintiffs have not sufficiently alleged facts necessary to bring this case within the ambit of the identifiable person-imminent harm exception to governmental immunity.

[761]*761The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n.5 A defendant is entitled to judgment as a matter of law if the duties allegedly breached required the exercise of judgment or discretion, in some measure, by the governmental employee. See Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989).

“The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: 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.” (Citations omitted.) Id., 505.

The identifiable person-imminent harm exception is the only exception that is relevant to this case. Our courts have construed this exception to apply not only to identifiable individuals, but also to narrowly defined classes of foreseeable victims. See Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994); Purzycki v. Fairfield, 44 Conn. App. 359, 363, 689 A.2d 504, cert. granted, 240 Conn. 926, 692 A.2d 1282 (1997).6 The [762]*762plaintiffs argue that as a student, the minor plaintiff was a member of a class of identifiable victims that was subject to imminent harm when the school and its officials failed to supervise the corridors properly between class periods. We do not agree.

The plaintiffs in this case have failed to provide factual support for their allegations that the minor plaintiff was an identifiable person that was subject to imminent harm. The harm allegedly suffered by the minor plaintiff was caused by the voluntary, wilful or negligent acts of another student. The plaintiffs do not allege that any of the defendants knew that the other student possessed the beans or pellets or that he would throw them toward the minor plaintiff. Moreover, the complaint contains no allegation that the defendants had any foreknowledge that the other student would act or would be likely to act in the way that he did during the period between classes. Thus, the plaintiff could have been injured at any time in the future or not at all.

Directly on point is our recent decision in Purzycki v. Fairfield, supra, 44 Conn. App. 359. In Purzycki, a second grade student was dismissed for recess and was tripped by a fellow student as he ran down the hallway. The plaintiffs alleged that the child’s injuries were caused by the school’s negligence in failing to monitor the hallway. In holding that the identifiable person-imminent harm exception did not apply, we concluded that the child “could have been injured at any time in the future while traveling from lunch to recess, or not at all. ... [T]he lack of supervision claimed here, standing alone, did not create [the risk of imminent harm], A combination of the lack of supervision, [the [763]*763child’s] own conduct and the conduct of another student caused the injuries. While it may have been foreseeable that [the child] might run in the hallway, any risk of harm that did exist required a confluence of events and did not rise to the level of imminence necessary to overcome the defendants’ immunity.” Id., 365-66.

This case, as did Purzycki, involves an injury that resulted from the allegedly negligent supervision in a school hallway. In both cases, the minor plaintiffs were injured by the spontaneous and unpredictable conduct of a fellow student. In Purzycki,

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Bluebook (online)
706 A.2d 1386, 47 Conn. App. 758, 1998 Conn. App. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonamico-v-city-of-middletown-connappct-1998.