175 Conn. App. 613
Conn. App. Ct.2017Background
- Third-grader Benjamin was playing soccer during a supervised physical-education class and was kicked in the shin/ankle, fracturing his tibia and fibula. A substitute PE teacher, Delehanty, was supervising.
- Jennifer Washburne sued the town of Madison, its Board of Education, the school principal, and Delehanty for negligence, alleging students were not provided shin guards in violation of school policy.
- The Board’s physical education guide included a safety-chart bullet: “wear shin guards for additional protection.” The guide also prohibited metal/molded cleats and was labeled as “Safety Guidelines.”
- Defendants moved for summary judgment asserting governmental (discretionary-act) immunity under Conn. Gen. Stat. § 52-557n and that the identifiable-person/imminent-harm exception did not apply.
- The trial court found the shin-guard decision discretionary (guideline, not mandate) and that plaintiff failed to show the risk was sufficiently probable to constitute imminent harm; summary judgment was entered for defendants.
- The Appellate Court affirmed: the guide’s language did not create a clear, ministerial duty to require shin guards, and the plaintiff presented insufficient evidence that the lack of shin guards made injury so likely as to trigger the imminent-harm exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PE guide’s safety language created a ministerial duty to require shin guards | The phrase “wear shin guards for additional protection” in the guide imposed a duty to ensure students wore shin guards | The guide is advisory; wording and context show discretion for teachers; no mandatory directive (no “must/shall/required”) | Guide is discretionary; no clear, unequivocal policy imposed a ministerial duty; governmental immunity applies |
| Whether the identifiable-person/imminent-harm exception defeats immunity | Even if discretionary, defendants knew harm was foreseeable and thus had a duty to act to prevent imminent harm to identifiable students | Foreseeability alone is insufficient; plaintiff must show probability of harm so high that immediate action was required; board data showed very low incidence of soccer injuries | Exception does not apply: plaintiff failed to show the probability of injury from not wearing shin guards was high enough to create a clear, immediate duty to act |
Key Cases Cited
- Haynes v. Middletown, 314 Conn. 303 (redefined imminent-harm test: duty depends on probability harm was so likely immediate action was required)
- Evon v. Andrews, 211 Conn. 501 (imminence focuses on risk magnitude and likelihood, not mere foreseeability)
- Williams v. New Haven, 243 Conn. 763 (statutory abrogation of common-law municipal immunity noted)
- Bonington v. Westport, 297 Conn. 297 (limits on exceptions to governmental immunity; ministerial vs discretionary distinction)
- Shore v. Stonington, 187 Conn. 147 (ministerial duty arises only from clear statutory or directive language)
- DiMiceli v. Cheshire, 162 Conn. App. 216 (characterization of acts as discretionary or ministerial; guidance on summary judgment on this issue)
- Ventura v. East Haven, 170 Conn. App. 388 (interpretation of municipal policies is a question of law for the court)
- Honulik v. Greenwich, 293 Conn. 698 (statutory/policy interpretation principles apply; jury not to decide legal interpretation)
- Strycharz v. Cady, 323 Conn. 548 (elements and limited recognition of imminent-harm exception)
- Williams v. Housing Authority, 159 Conn. App. 679 (four-part explication of Haynes imminent-harm standard)