ALBERT BUEHLER v. TOWN OF NEWTOWN ET AL.
(AC 43087)
Appellate Court of Connecticut
Argued March 4—officially released August 3, 2021
Prescott, Elgo and DiPentima, Js.
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Syllabus
The plaintiff sought to recover damages from the defendants, the town of Newtown and various school employees, for personal injuries he sustained when he fell from a referee stand while officiating a public high school volleyball match. The defendants filed a motion for summary judgment, arguing that they had shown that their allegedly negligent actions were discretionary, and thus they enjoyed governmental immunity, and that the plaintiff did not fall within the identifiable person-imminent harm exception to the governmental immunity doctrine. The trial court granted the defendants’ motion for summary judgment, finding that the plaintiff, a volleyball referee, was not legally compelled to be on school premises at the time of his injury, and, accordingly, he was not an identifiable person to whom the identifiable person-imminent harm exception applied. On the plaintiff‘s appeal to this court, held that the trial court properly determined that no genuine issue of material fact existed as to whether the plaintiff was an identifiable victim who fell within the identifiable person-imminent harm exception to the governmental immunity doctrine: the only identifiable class of foreseeable victims that our Supreme Court has recognized is that of schoolchildren attending public schools during school hours, and an assignment to officiate a volleyball game after school hours is nothing like the legal compulsion imposed by our statutes that require a child‘s attendance at school; moreover, the plaintiff conceded that he had the option to accept or to deny the refereeing assignment, which made his presence on the premises voluntary; furthermore, it would have been improper to extend the identifiable victim classification, particularly because the student athletes participating in the volleyball game over which the plaintiff officiated would not themselves enjoy such a designation under existing law, and there was no doctrinal justification for treating the plaintiff differently than the schoolchildren.
Argued March 4—officially released August 3, 2021
Procedural History
Action to recover damages for personal injuries sustained as a result of the defendants’ alleged negligence, brought to the Superior Court in the judicial district of Fairfield, where the court, Welch, J., granted the defendants’ motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.
Matthew D. Popilowski, with whom, on the brief, was Richard J. Tropiano, Jr., for the appellant (plaintiff).
John A. Blazi, for the appellees (named defendant et al.).
Opinion
The record before the court, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following relevant facts and procedural history. The plaintiff has worked as a volleyball referee for approximately forty years. The plaintiff received training and multiple national and state certifications in connection with his role as a referee. Further, the plaintiff was a member of the Connecticut Federation of Volleyball Officials. Although the position was part-time, the plaintiff frequently officiated matches on each day of a given week. The plaintiff regularly officiated college volleyball matches throughout the northeast, and high school volleyball matches in Connecticut and New York.
In order for its members to receive assignments for high school volleyball matches, the Connecticut Federation of Volleyball Officials utilized an online system called ArbiterSports. Referees, like the plaintiff, had access to ArbiterSports. Through the system, an assigner assigned referees to officiate specific matches, and the referees would receive notice of their match assignments via e-mail. The system assigned two referees to each match. A volleyball match properly could take place with one official, but such a situation was “unusual.”2 Under the rules of one of the governing agencies of high school volleyball, however, volleyball matches were not allowed to be played with no referee in attendance.
Upon receipt of notice of their match assignments, referees had the option to accept or reject the assignment. There was no rule that a referee must accept a referee assignment; however, referees generally needed to accept assignments if they wanted to continue receiving assignments in the future.
The plaintiff was assigned to officiate a girls volleyball match on September 25, 2015, at Newtown High School. The match was arranged to take place in the school gymnasium, and one of the two assigned referees was expected to stand on an officiating stand in the gymnasium for the duration of the match to provide the referee with an elevated vantage point. The officiating stand was covered in padding and secured using a pin. There was no written policy concerning how the officiating stand was to be set up prior to girls volleyball matches. The student athletes routinely set up the officiating stand and the volleyball net prior to the arrival of the referees at the direction of the volleyball coach and/or athletic director. To set up the officiating stand, students were instructed to separate the two side rails of the ladder, rest the platform on top of the ladder, and secure the stand by inserting an attached pin. Simon, who ultimately was responsible for equipment setup in the school gymnasium, supervised setup prior to the volleyball match at issue.
Prior to the varsity match, a junior varsity match took place, and the plaintiff served as one of the two referees. During the junior varsity match, the other referee stood on the officiating stand. The plaintiff, however, stood on the officiating stand
In September, 2017, the plaintiff commenced this action, alleging that the defendants’ negligent maintenance of the stand, failure to inspect and repair the stand, and failure to erect or maintain proper safeguards or warning signs, constituted a defective condition on the school premises that caused the injuries sustained by the plaintiff. The plaintiff further alleged that the defendants knew or, in the exercise of reasonable care, should have known about the defective stand.
In December, 2017, the defendants requested that the plaintiff revise several counts of his complaint to address, inter alia, the alleged basis of the town‘s and the board‘s liability. The defendants also requested that the plaintiff identify whether the individual defendants’ actions were ministerial or discretionary.3 In both requests, the defendants asserted that each defendant, either as a municipality or as an agent thereof, enjoyed qualified immunity from liability for the plaintiff‘s injuries.
The plaintiff filed a revised complaint on May 4, 2018, alleging, inter alia, that (1) the town and the board were liable to the plaintiff under
On October 30, 2018, the defendants filed a motion for summary judgment as to all six counts of the revised complaint, asserting that there were no genuine issues of material fact in dispute and the defendants were entitled to judgment as a matter of law. In support of their motion, the defendants submitted a memorandum of law, several affidavits, and excerpts from the plaintiff‘s deposition transcript.8 The defendants argued that they had shown through their submissions that their allegedly negligent actions were discretionary, and thus they enjoyed governmental immunity unless the plaintiff fell within the narrow identifiable person-imminent harm exception to governmental immunity recognized by our Supreme Court. The defendants further argued that the plaintiff was not an identifiable victim, because the plaintiff voluntarily attended the volleyball match at which he was injured.9 The defendants asserted that, because there was no question of fact that the plaintiff did not fall within the narrow identifiable person-imminent harm exception, the plaintiff could not prevent the application of governmental immunity, and the trial court was required to grant summary judgment in their favor.
In response, the plaintiff objected to the defendants’ motion for summary judgment10 in December, 2018, and, in support, submitted excerpts from Simon‘s and Czaplinski‘s depositions as well as a copy of board policies concerning the qualifications and duties of the athletic director for the school. The plaintiff argued that genuine issues of material fact existed as to whether (1) the plaintiff was, in fact, an identifiable victim under the identifiable person-imminent harm exception to governmental immunity, (2) the plaintiff was subject to imminent harm under the identifiable
On December 14, 2018, the plaintiff filed a request for leave to amend the revised complaint, which was granted on January 10, 2019, over the objection of the defendants. The plaintiff amended counts one, two, and five against the town, the board, and Simon, respectively, by removing certain language concerning reasonableness and adding references to the board policy concerning the qualifications and duties of the athletic director for the school. The defendants filed a supplemental motion for summary judgment, noting that no further argument was necessary because they had already addressed all relevant issues in their original motion for summary judgment. The trial court heard argument on the motion for summary judgment on February 25, 2019.
The trial court, Welch, J., granted the defendants’ motion for summary judgment. The trial court determined preliminarily that, because the defendants’ actions were discretionary, rather than ministerial, they were immune from liability unless the plaintiff fell within the identifiable person-imminent harm exception to the governmental immunity doctrine. A party is an identifiable victim, the trial court explained, when that person is compelled to be somewhere, outside of limited circumstances. Thus, the trial court noted that the class of identifiable persons to which the exception is generally applicable is usually limited to students attending public schools during regular school hours because they are legally compelled to be on the school premises. The trial court determined that the plaintiff, a volleyball referee, was not legally compelled to be on the school premises at the time of his injury. Instead, his presence on the premises was voluntary. Accordingly, he was not an identifiable person to whom the identifiable person-imminent harm exception applied.11 This appeal followed.
On appeal, the plaintiff challenges the trial court‘s decision to grant summary judgment in favor of the town, the board, and Simon. The plaintiff claims that the trial court improperly determined that no genuine issue of material fact existed as to whether he was an identifiable victim and, accordingly, he fell within the identifiable person-imminent harm exception to the governmental immunity doctrine. We are not persuaded.
We begin by setting forth the applicable standard of review. “This court‘s standard of review for a motion for summary judgment is well established. Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light
“The law pertaining to municipal immunity is similarly well settled. [General Statutes §] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages. . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties. . . . [Section] 52-557n (a) (2) (B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions [that] require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” (Internal quotation marks omitted.) Ventura v. East Haven, 330 Conn. 613, 629, 199 A.3d 1 (2019). “Accordingly, a municipality is entitled to immunity for discretionary acts performed by municipal officers or employees . . . .” Kusy v. Norwich, supra, 192 Conn. App. 177.
“Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.” (Internal quotation marks omitted.) Borelli v. Renaldi, 336 Conn. 1, 10–11, 243 A.3d 1064 (2020).
Our Supreme Court “has recognized an exception to discretionary act immunity that allows for liability when 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 . . . . This identifiable person-imminent harm exception has three requirements: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm. . . . All three must be proven in order for the exception to apply. . . . [T]he ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues . . . properly left to the jury.” (Citation omitted; internal quotation marks omitted.) Martinez v. New Haven, 328 Conn. 1, 8, 176 A.3d 531 (2018). “[Our Supreme Court has] stated previously that this exception
“An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. . . . Although the identifiable person contemplated by the exception need not be a specific individual, the plaintiff must fall within a narrowly defined identified [class] of foreseeable victims.” (Internal quotation marks omitted.) Id., 861-62. “[T]he question of whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this exception to qualified immunity is ultimately a question of policy for the courts, in that it is in effect a question of duty. . . . This involves a mixture of policy considerations and evolving expectations of a maturing society . . . . [T]his exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. . . . Our [Supreme Court‘s] decisions underscore, however, that whether the plaintiff was compelled to be at the location where the injury occurred remains a paramount consideration in determining whether the plaintiff was an identifiable person or member of a foreseeable class of victims.” (Internal quotation marks omitted.) Kusy v. Norwich, supra, 192 Conn. App. 183; see also Grady v. Somers, 294 Conn. 324, 356, 984 A.2d 684 (2009) (“we have interpreted the identifiable person element narrowly as it pertains to an injured party‘s compulsion to be in the place at issue“).
“Our courts have construed the compulsion to be somewhere requirement narrowly. . . . [T]his court [has previously] concluded that a plaintiff did not satisfy the requirement because [t]he plaintiff [did] not [cite] any statute, regulation or municipal ordinance that compelled her to drive her car on the stretch of [the] [s]treet where [an] accident occurred . . . [and] [did] not [show] that her decision to take [the] particular route was anything but a voluntary decision that was made as a matter of convenience. . . . [O]ur Supreme Court [has] determined that a person is not an identifiable victim if he is not legally required to be somewhere and could have assigned someone else to go to the location to complete the task in his place. . . . In Grady [v. Somers, supra, 294 Conn. 355–56], the municipality did not provide refuse pickup service, and residents could either obtain a transfer station permit and discard their own refuse, or hire private trash haulers to come to their home. . . . Because the plaintiff . . . had the option of hiring an independent contractor to dispose of his refuse, the court did not classify him as an identifiable victim for injuries he sustained when he slipped on an ice patch at the transfer station.” (Citations omitted; internal quotation marks omitted.) Kusy v. Norwich, supra, 192 Conn. App. 185–86 n.7.
Our Supreme Court has noted that “[t]he only identifiable class of foreseeable victims that [the court has] recognized . . . is that of schoolchildren attending public schools during school hours . . . .” (Internal quotation marks omitted.) Id., 183–84;12 see, e.g., Cotto v. Board of Education, 294 Conn. 265, 267-68, 984 A.2d 58 (2009) (program director for summer youth program who slipped and fell on school premises was not considered identifiable class member); Durrant v. Board of Education, 284 Conn. 91, 107-108, 931 A.2d 859 (2007) (mother who slipped and fell picking up child from optional after school day care was not considered identifiable class member); Prescott v. Meriden, 273 Conn. 759, 761-62, 766, 873 A.2d 175 (2005) (parent who fell while voluntarily attending high school football game to watch child was not considered identifiable class member); Costa v. Board of Education, 175 Conn. App. 402, 409, 167 A.3d 1152 (student voluntarily attending school picnic who was injured while voluntarily playing basketball game was not considered identifiable class member), cert. denied, 327 Conn. 961, 172 A.3d 801 (2017). “Students attending public school during school hours are afforded this special designation as identifiable victims because they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they [are] legally required to attend school rather than being there voluntarily; their parents [are] thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions.” (Internal quotation marks omitted.) Kusy v. Norwich, supra, 192 Conn. App. 184–85. Accordingly, this court has consistently held that students who are injured outside of school hours do not fall within the class of identifiable victims under the identifiable victim-imminent harm exception. See Marvin v. Board of Education, 191 Conn. App. 169, 184, 213 A.3d 1155 (2019) (student athlete injured in locker room after school hours was not considered identifiable class member); Jahn v. Board of Education, 152 Conn. App. 652, 668-69, 99 A.3d 1230 (2014) (student athlete injured during swim practice was not considered identifiable class member).
In Kusy v. Norwich, supra, 192 Conn. App. 185-87, this court determined that a plaintiff did not fall within the identifiable class of foreseeable victims to invoke the identifiable person-imminent harm exception, even when the plaintiff‘s existence on the premises was required by his employer to complete a work-related task. The plaintiff in Kusy, a deliveryman, delivered milk to a local middle school as part of his employment duties. Id., 173. On one morning, he notified his employer that he noticed snow and ice on the premises, but his employer “ordered him to complete the delivery.” Id. The plaintiff slipped on the ice and fell on the premises. Id.
This court upheld the trial court‘s granting of summary judgment in favor of the defendants, the city, the board of education, and city employees. Id., 187. “[U]nlike schoolchildren, the plaintiff was not required by law to be on school grounds. A contractual duty to deliver milk at the school falls far short of the legal compulsion imposed by our statutes
In the present case, the plaintiff claims that he is an identifiable victim because he was compelled to be on the premises at the time of his injury. The plaintiff claims that, as a sports official, he was compelled to be on the premises and, without his presence, the volleyball match would not be permitted to go forward.13 Essentially, the plaintiff asks us to extend the identifiable victim classification to encompass a plaintiff who is present on municipal property to officiate a voluntary activity outside of school hours. We decline to do so for the following reasons.
Just as in Kusy, “unlike schoolchildren, the plaintiff [in this case] was not required by law to be on school grounds.” Id., 185. An assignment to officiate a volleyball game after school hours is nothing like the legal compulsion imposed by our statutes that require a child‘s attendance at school. Id. Moreover, the plaintiff conceded that he had the option to accept or to deny the assignment. The plaintiff‘s presence on the premises, therefore, was voluntary. The possibility that, had he denied this, or other, officiating assignments, the plaintiff might have received fewer future assignments, does not render his presence on the premises involuntary, and certainly does not give rise to the same degree of legal compulsion necessary to fall within the immunity exception.
It would be improper for this court to extend the identifiable victim classification in this case, particularly because the student athletes participating in the volleyball game over which the plaintiff officiated would not themselves enjoy such a designation under existing law. See, e.g., Marvin v. Board of Education, supra, 191 Conn. App. 180–184; Jahn v. Board of Education, supra, 152 Conn. App. 668-69. In
The judgment is affirmed.
In this opinion the other judges concurred.