Purzycki v. Town of Fairfield

689 A.2d 504, 44 Conn. App. 359, 1997 Conn. App. LEXIS 59
CourtConnecticut Appellate Court
DecidedFebruary 25, 1997
Docket15166
StatusPublished
Cited by19 cases

This text of 689 A.2d 504 (Purzycki v. Town of Fairfield) 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
Purzycki v. Town of Fairfield, 689 A.2d 504, 44 Conn. App. 359, 1997 Conn. App. LEXIS 59 (Colo. Ct. App. 1997).

Opinions

SPEAR, J.

The plaintiffs1 appeal from the judgment notwithstanding the verdict rendered by the trial court after it granted the defendants’2 motion to set aside the verdict. The plaintiffs claim that the trial court improperly determined that they failed to establish the imminent harm aspect of the identifiable person-imminent harm exception to the defendants’ qualified governmental immunity. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff Jason Purzycki was an eight year old second grade student at Roger Sherman School in Fairfield. School rules required that teachers escort [361]*361students 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 lunch room, 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., Jason, along with the rest of his class, was escorted to lunch by a teacher. After being dismissed for recess, Jason 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. Jason 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 plaintiff Jason Purzycki was 40 percent negligent and the defendants’ negligence subjected Jason 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 [362]*362granted the defendants’ motion and rendered judgment notwithstanding the verdict. This appeal followed.

A trial court may set aside a jury verdict if the court finds the verdict to be against the law or the evidence. Caciopoli v. Acampora, 30 Conn. App. 327, 331, 620 A.2d 191 (1993). The trial court’s decision to set aside a jury verdict will not be reversed on appeal unless the trial court abused its discretion. Davis v. Druks, 43 Conn. App. 453, 454, 683 A.2d 745 (1996). “While the trial court has broad discretion to set aside verdicts, it should be mindful that [ljitigants have a constitutional right to have factual issues resolved by the jury.” (Internal quotation marks omitted.) Caciopoli v. Acampora, supra, 331, quoting Berry v. Loiseau, 223 Conn. 786, 807, 614 A.2d 414 (1992); Donahue v. State, 27 Conn. App. 135, 140, 604 A.2d 1331 (1992). “Every reasonable presumption should be indulged in favor of the correctness of the trial court’s decision to set aside the verdict because a trial court is in a better position than an appellate court to determine whether a jury’s verdict was improperly influenced.” Caciopoli v. Acampora, supra, 330. “ ‘[T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.’ ” Id., 332.

With this standard of review in mind, we turn now to the law concerning municipal immunity. “ ‘The doctrines that determine the tort liability of municipal employees are well established. Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. . . (Citations omitted.) Beach v. Regional School District Number 13, 42 Conn. App. 542, 553, 682 A.2d 118 (1996). Municipal employees now have qualified immunity in the performance of [363]*363governmental duties, but may be liable if they misperform a ministerial act, as opposed to a discretionary act. Id. Ministerial duties are those that can “be performed in a prescribed manner without the exercise of judgment or discretion. ...” (Citations omitted; internal quotation marks omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).

The plaintiffs concede that any duty owed was discretionary in nature. For the plaintiffs to succeed on their claim, the case must fit within one of the following 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.” (Citations omitted.) Id.

The identifiable person-imminent harm exception is the only one relevant to this case. Our courts have recognized that this exception includes not only identifiable individuals, but also includes narrowly defined classes of foreseeable victims. See Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994); Sestito v. Groton, 178 Conn. 520, 527-28, 423 A.2d 165 (1979). The defendants do not claim that Jason is not a member of a narrowly defined class of foreseeable victims or that the harm was not foreseeable. Rather, they claim that the trial court properly granted their motion to set aside the verdict because, on the basis of the evidence adduced at trial, the jury could not have reasonably concluded that the lack of supervision subjected Jason to imminent harm.

We agree with the trial court that “there was no evidence that [Jason], in traveling the brief distance [364]*364from the ‘all-purpose’ room to the playground, was in imminent harm. True, the principal knew that if children were not watched they might run in the hall, and that if they ran in the hall, they could get hurt.

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Bluebook (online)
689 A.2d 504, 44 Conn. App. 359, 1997 Conn. App. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/purzycki-v-town-of-fairfield-connappct-1997.