Purzycki v. Town of Fairfield

708 A.2d 937, 244 Conn. 101, 1998 Conn. LEXIS 65

• Court: Supreme Court of Connecticut
• Decided: March 17, 1998
• Docket: SC 15668
• Status: Published

Opinions

Opinion

BORDEN, J.

The sole issue in this certified appeal is whether the plaintiffs failed to prove that the plaintiff Jason Purzycki (child) was subject to imminent harm, so as to come within an applicable exception to the doctrine of governmental immunity for discretionary acts performed by municipal employees. The named plaintiff, Gary Purzycki, filed this action as parent and next friend of the child, and on his own behalf for his medical expenses, against the defendants¹ for injuries that the child had sustained when he was tripped by another student in a school hallway and suffered facial lacerations. The plaintiffs appeal from the judgment of the Appellate Court affirming the judgment of the trial court, which granted the defendants’ motion to set aside the jury verdict for the plaintiffs. The plaintiffs claim that there was sufficient evidence for the jury to have found that the imminent harm exception to governmental immunity applied. The defendants contend that the plaintiffs failed to produce sufficient evidence to prove that governmental immunity did not apply.² We agree with the plaintiffs and, accordingly, we reverse the judgment of the Appellate Court.

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

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

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

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

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

I

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

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

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

The plaintiff's concede that any duty owed by the defendants to the child was discretionary, not ministerial in nature.⁵ Therefore, in order to prevail, the plaintiffs’ claim must fall within one of the recognized exceptions to qualified immunity for discretionary acts. “Our cases recognize three such exceptions: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.” (Internal quotation marks omitted.) Burns v. Board of Education, supra, 228 Conn. 645; Evon v. Andrews, supra, 211 Conn. 505.

The only exception to the qualified immunity of a municipal employee for discretionary acts that is relevant to the present case is the exception permitting a tort action in circumstances of likely imminent harm to an identifiable person. “We have construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims.” Burns v. Board of Education, supra, 228 Conn. 646. Moreover, we have established specifically that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims. Id., 650. Therefore, we must inquire whether there was sufficient evidence for a jury to have found that imminent harm existed under these circumstances.

In Burns, a schoolchild slipped and fell due to icy conditions on a main accessway of the school campus, during school hours. In that case, “the danger was limited to the duration of the temporary icy condition in this particularly ‘treacherous’ area of the campus . . . [and] the potential for harm from a fall on ice was significant and foreseeable.” Id. We concluded that governmental immunity was not a defense because a “[schoolchild] was one of a class of foreseeable victims to whom the superintendent owed a duty of protection in relation to the maintenance and safety of the school grounds . . . .” Id.

In reaching that conclusion in Burns, we distinguished it factually from Evon. In Evon, the plaintiffs decedent filed an action against the city of Waterbury and its officers claiming that they had been negligent in failing reasonably to inspect and enforce statutes concerning the maintenance of a multifamily rental unit that the decedent was occupying when it was destroyed by fire. Evon v. Andrews, supra, 211 Conn. 502. We concluded that the imminent harm exception for discretionary acts did not apply under those facts because “[t]he risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future.” Id., 508. We also stated that “[t]he 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’ . . . .” Id.

Under the facts of the present case, we conclude that this case is more analogous to Burns than it is to Evon. In Burns, it was critical to our conclusion that governmental immunity was not a defense that “the danger was limited to the duration of the temporary . . . condition . . . [and that] the potential for harm . . . was significant and foreseeable.” Burns v. Board of Education, supra, 228 Conn. 650. Similarly, the present case involves a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess. Also, it involves a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision.⁶ Finally, the risk of harm was significant and foreseeable, as shown by the principal’s testimony “that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries.” Purzycki v. Fairfield, supra, 44 Conn. App. 367 (Heiman, J., dissenting). Thus, we follow Burns and, under the facts of the present case, conclude that there was sufficient evidence from which the jury reasonably could have found a foreseeably dangerous condition that was limited in duration and geographical scope.

The defendants and the amici curiae claim that the risk of harm presented here was more similar to Evon because there was evidence that this type of harm had not previously occurred during the twenty-two year time period in which the same level of supervision had occurred. The defendants also point out that the hallway itself harbored no dangers or defects. We disagree. There was no evidence from which the jury could have inferred that no such injuries had occurred.⁷ Moreover, although the absence of prior similar incidents may induce a jury to find an absence of liability, it does not foreclose a finding of liability, as a matter of law, for the first incident that occurs.

Furthermore, as noted previously, the imminent harm was limited to a one-half hour period each day when the second grade students were dismissed to traverse an unsupervised hallway, when school administrators were aware that unsupervised children are more likely to run and engage in horseplay leading to injuries. Therefore, because the school administrators here had reason to foresee the danger that could occur on a daily basis, the harm in the present case was not as remote a possibility as was the harm in Evon.

II

The defendants also offer four alternate grounds for affirming the Appellate Court’s judgment, namely, that: (1) the doctrine of sovereign immunity would bar the plaintiffs’ claim; (2) the jury reasonably could not have found that the defendants’ negligence was an actual or proximate cause of the child’s injuries; (3) there was insufficient evidence for the jury to have found a duty to supervise or a breach of such a duty; and (4) the defendants stood in loco parentis to the child and are thereby granted immunity. We do not find any of these alternate grounds persuasive.

A

First, the defendants proffer the doctrine of sovereign immunity as a basis for affirming the judgment of the Appellate Court. The defendants ar gue that local boards of education are agents of the state when performing educational functions. They follow this assertion with the proposition that the state, unless it consents to be sued, enjoys sovereign immunity from suit, and that such immunity has been extended to agents of the state acting on its behalf and is not subject to the governmental immunity exceptions.

Although these statements of the law are accurate, our jurisprudence has created a dichotomy in which local boards of education are agents of the state for some purposes and agents of the municipality for others. Heigl v. Board of Education, 218 Conn. 1, 3-4, 587 A.2d 423 (1991). To determine whether the doctrine of sovereign immunity applies to a local school board, we look to whether the “action would operate to control or interfere with the activities of the state . . . .” Cahill v. Board of Education, 187 Conn. 94, 102, 444 A.2d 907 (1982). The duty to supervise students is performed for the benefit of the municipality. See Burns v. Board of Education, supra, 228 Conn. 640; Heigl v. Board of Education, supra, 7-8. Therefore, sovereign immunity is not implicated in the present case.

B

The defendants next contend that there was insufficient evidence for a jury to have found that the defendants’ negligence was the cause in fact of the child’s injuries. They indicate that because the plaintiffs failed to prove that the child’s injury would not have occurred if monitors had been in place, causation was not proven. We are not persuaded.

“ ‘[T]he constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded [persons] passed upon by the jury and not by the court.’ ” State v. Wooten, 227 Conn. 677, 696, 631 A.2d 271 (1993). “We do not sit as the ‘seventh juror’ when we review the sufficiency of the evidence; State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990); rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... Moreover, ‘[i]n reviewing the jury verdict, it is well to remember that [j Jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.’ ” State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994).

The test for cause in fact is “ ‘[w]ould the injury have occurred were it not for [the defendant’s] negligent . . . conduct ... ?’” Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 605, 662 A.2d 753 (1995). Proximate cause is defined as “ ‘[a]n actual cause that is a substantial factor in the resulting harm ....’” Id., 606. “The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” (Internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 758, 563 A.2d 699 (1989).

In the present case, the plaintiffs produced evidence that the principal knew, based upon his knowledge of the relatively minor degree of judgment and experience of young schoolchildren, that they repeatedly violated the rules and that they will engage in horseplay when left unsupervised. The plaintiffs also produced evidence that the students were supervised at all other aspects of lunch and recess, except when traveling in that hallway from the all-purpose room to the playground, and that the dismissal of children from the lunchroom was random in that they were given the discretion to leave on their own or in groups. In its memorandum of decision, the trial court found “that the jury could have reasonably inferred that the absence of an adult watching the [child] as he traveled from the ‘all-purpose’ room to the playground was a substantial factor in causing the [child] to run in the hallway, believing he could do so with impunity.” Also, “a jury could reasonably find that teachers busy teaching in their own classrooms can hardly be considered to be adequately monitoring an adjacent hallway.” Purzycki v. Fairfield, supra, 44 Conn. App. 367 n.1 (Heiman, J., dissenting). Therefore, the jury reasonably could have found that the failure to supervise the children proximately caused the child’s injuries. On the basis of these facts as set forth in the record, causation was a determination of fact for the jury. Therefore, the defendants cannot prevail under this alternate ground for affirmance.

C

Next, the defendants claim that judgment should be affirmed because there was insufficient evidence to establish any basis upon which the jury could find the existence of a duty to supervise or a breach of such a duty. In support of this claim, the defendants argue, citing Heigl v. Board of Education, supra, 218 Conn. 8, that “Connecticut case law has never recognized, a specific duty to supervise students.” Heigl does not, however, support the defendants’ claim. In that case we declared: “Neither the General Statutes nor our deci-sional law has ever stated that a board of education has a specific duty to supervise high school students.” (Emphasis added.) Id. The child in the present case was a second grade student and not a high school student. In Heigl, we further stated that, if such a duty existed, actions taken pursuant to such a duty are discretionary. Id. On the basis of our conclusion that the plaintiffs have adequately proven the imminent harm to an identifiable person exception to governmental immunity for discretionary acts, this alternate theory also must fail.

D

Finally, the defendants argue that the judgment of the Appellate Court should be affirmed because the defendants stood in loco parentis to the child and are thereby immune from liability for negligence. They state that a teacher in a public school stands in loco parentis toward a pupil, and that the parental immunity doctrine bars an unemancipated minor from bringing an action against his or her parents for injuries sustained by the negligence of the parents. Completing the syllogism, they argue that the tort liability of school officials for negligence must also fall within parental immunity. We are not persuaded.

“The purpose of the doctrine [of parental immunity] is to preserve the integrity and unity of the family and to avoid unnecessarily injecting ‘the machinery of the state’ into the day-to-day exercise of parental discretion. . . . [T]here are few things more disruptive of familial harmony than a legal action by an unemancipated minor child against a parent.” (Citations omitted.) Squeglia v. Squeglia, 234 Conn. 259, 265-66, 661 A.2d 1007 (1995). These concerns are not present here where an unemancipated minor and his parent are bringing an action against a school principal and a school board. Therefore, we decline to utilize this alternate ground as a basis for affirming the decision of the Appellate Court.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to that court with direction to render judgment for the plaintiffs in accordance with the jury verdict.

In this opinion BERDON, KATZ and PALMER, Js., concurred.

1 The plaintiffs brought an action against the town of Fairfield, Joseph Walsh, the principal of Roger Sherman School, and the Fairfield board of education. The plaintiffs withdrew their claim against the town prior to trial. Hereinafter, we refer to Walsh and the board of education as the defendants.

2 The defendants also offer four alternate grounds for affirming the judgment of the Appellate Court in the event that we conclude that there was sufficient evidence to support the jury’s verdict. They claim: (1) the doctrine of sovereign immunity bars the plaintiffs’ claim; (2) the jury reasonably could not have found that the defendants’ negligence was an actual or proximate cause of the child’s injuries; (3) there was insufficient evidence for the jury to have found a duty to supervise or a breach of such a duty; and (4) the defendants stood in loco parentis to the child and are thereby granted parental immunity. We discuss these claims in part II of this opinion.

3 The plaintiffs withdrew their claim for nuisance prior to trial.

4 Because the material facts of this case are undisputed, the question presented here is one of law.

5 We note that “[t]he existence of a duty of care ... is a matter of law for the court to decide. Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982) . . . .” (Citation omitted.) Burns v. Board of Education, supra, 228 Conn. 646. “The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised.” Id., 647. This duty can be “a ministerial or a clear and unequivocal discretionary duty.” Shore v. Stonington, supra, 154. The parties conceded and the trial court found that a discretionary duty existed and the only question was whether the imminent harm exception applied.

6 First, the students inarched single file into the lunchroom escorted by their teacher. Then, two monitors were in attendance in the all-purpose room while the students ate their lunch. Finally, two monitors supervised the playground during the remainder of the recess.

7 The testimony elicited from the principal regarding the history of injuries at Roger Sherman School was limited in scope to injuries caused by the breaking of a glass partition in the same door. He testified that the glass doors were never broken and shattered. He was never asked if, during the previous twenty-two years, any injuries had occurred in the hallway during the lunch hour or while children were going out to recess. Because this broader inquiry was never made, there was no evidence from which the jury could draw such an inference.