133 Conn. App. 215
Conn. App. Ct.2012Background
- Plaintiffs, Joanne Avoletta as parent and next friend of Peter and Matthew, sue Torrington city, board of education, and seven individuals for failing to provide a proper public education in a safe environment with adequate IAQ.
- Peter Avoletta attended Torrington Middle School (1999–2002) and Torrington High School; he developed irreversible lung disease linked to bacteria/mold at the school.
- Matthew Avoletta suffered allergies/asthma; after attending a middle school event, he refused to return and plaintiff placed him at Chase Collegiate School seeking reimbursement.
- Plaintiffs placed Peter and Matthew in private school placement outside the district; defendants denied reimbursement; federal claims were removed and then state law claims were remanded.
- Counts six and seven of the complaint alleged intentional spoliation of evidence and fraudulent concealment; the trial court struck these counts for governmental immunity, leaving other counts intact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counts six and seven are barred by governmental immunity | Avoletta asserts spoliation/concealment claims survive immunity or have statutory abrogation. | City/board argue § 52-557n(a)(2)(A) bars intentional torts; no abrogation statute shown. | Counts six and seven barred by § 52-557n(a)(2)(A); immunity applies to intentional torts. |
| Whether ministerial/discretionary act analysis applies to intentional torts | Distinguish ministerial vs discretionary and apply exceptions to discretionary immunity. | Such distinctions/exceptions do not apply to intentional torts; immunity still applies. | Analysis not applicable to intentional torts; immunity barred counts six and seven. |
| Whether statutory abrogation existed for intentional spoliation/fraudulent concealment | There is statutory basis to abrogate immunity for misconduct. | No statute abrogating immunity for these intentional acts. | No statutory abrogation identified; immunity stands. |
Key Cases Cited
- Pane v. Danbury, 267 Conn. 669 (2004) (immunity framework for municipalities and intentional torts)
- Violano v. Fernandez, 280 Conn. 310 (2006) (three discretionary act immunity exceptions)
- O'Connor v. Board of Education, 90 Conn. App. 59 (2005) (intentional tort immunity unaffected by ministerial/discretionary distinction)
- Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225 (2006) (elements of intentional spoliation of evidence)
- Flannery v. Singer Asset Finance Co., LLC, 128 Conn. App. 507 (2011) (fraudulent concealment standard (appellate context))
- Kelly v. New Haven, 275 Conn. 580 (2005) (service of immunity for official capacity actions)
- Martin v. Westport, 108 Conn. App. 710 (2008) (governmental immunity framework in appellate review)
- Doe v. Yale University, 252 Conn. 641 (2000) (pleading standards and governmental immunity context)
- McCoy v. New Haven, 92 Conn. App. 558 (2005) (application of immunity principles to municipal actions)
- O'Connor v. Board of Education, 90 Conn. App. 59 (2005) (intentional tort immunity distinction in school context)