JOHN DOE v. CITY OF NEW HAVEN ET AL.
(AC 44406)
Appellate Court of Connecticut
August 23, 2022
Prescott, Clark and DiPentima, Js.
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Syllabus
The plaintiff sought to recover damages from the defendants, the city of New Haven, the city‘s board of education and J, a high school principal, for injuries he allegedly sustained as a result of sexual abuse by F, a theater teacher at the high school. F supervised and directed an extracurricular school play in which the plaintiff had a part. F occasionally met with the plaintiff and other students involved in the play for one-on-one singing and acting lessons. Although J did not know that F met with students privately for lessons, other employees at the high school were aware of those meetings. F sent text messages from her personal cell phone to the plaintiff and other students about matters related to the play. The conversations between F and the plaintiff eventually became more intimate, and the plaintiff began going to F‘s classroom in the mornings before classes started and they would kiss. The plaintiff, along with other students at the high school, was enrolled in afternoon classes at an arts center and therefore was dismissed from the high school at 12:30 p.m. Monday through Thursday. One Friday, when the plaintiff did not have classes at the arts center, he went to F‘s classroom after his last class ended at 12:30 p.m. and she performed oral sex on him. On another day, the plaintiff and F went to an adjacent dressing roоm adjoining the auditorium stage. A security guard entered the dressing room and discovered them; the police and high school administration were immediately notified and an investigation ensued. The plaintiff alleged, inter alia, that the defendants failed to supervise employees and classrooms and teachers’ use of cell phones. The plaintiff further alleged that J violated a ministerial duty to report suspected child abuse under the mandatory reporting statutes (
- The trial court properly concluded that no genuine issue of material fact existed as to whether J breached the ministerial duty under
§ 17a-101a to report a reasonable suspicion of child abuse or that the defendants violated ministerial duties to prohibit free class periods and to take attendance in every class:- The plaintiff failed to demonstrate the existence of a genuine issue of material fact as to whether J or any other staff member had reasonable cause to suspect that F was sexually abusing or exposing the plaintiff to an imminent risk of sexual abuse: F‘s personnel file was devoid of complaints or disciplinary actions prior to the events at issue, her application for her teaching position was accompanied by positive recommendations from her references, there was nothing inherently suspicious about a teacher occasionally meeting with a student privately in connection with a supervised extracurricular activity, and, although the school administration knew F had collected contact information from the students involved in the play, neither that nor the nontraditional, relaxed setting of F‘s classrоom that included a couch would cause a reasonable person to suspect that any of those students were at imminent risk for sexual abuse; moreover, none of the evidence suggested that J or any other staff member was aware that F had exchanged sexually suggestive messages with the plaintiff, as neither F nor the plaintiff disclosed to anyone that they were communicating by text message; furthermore, the plaintiff ensured that he and F were alone before any inappropriate contact occurred between them, both took measures to be discreet and no staff member had witnessed them engaging in sexual conduct.
- Contrary to the plaintiff‘s assertion, J‘s deposition testimony was insufficient to give rise to genuine issues of material fact as to whether the defendants violated ministerial duties requiring that attendance be taken in every class and prohibiting students from having free periods in their class schedules: J did not testify unequivocally that she had communicated to her employees a mandatory method for creating class schedules without free periods but, rather, highlighted a general practice that lacked the specificity necessary to establish a ministerial duty, and her testimony did not constitute the specific and clearly stated directives to school employees required to еstablish a ministerial duty to take attendance in every class and notify parents about student absences, as J merely observed that no student should have had a free period in his or her class schedule and that students were dismissed early when their schedules ended before the school day concluded; moreover, even if J‘s testimony were sufficient to give rise to a genuine issue of material fact as to whether the defendants had a ministerial duty to take attendance in every class, the defendants still would be entitled to summary judgment because there was no evidence that they breached that duty; furthermore, contrary to the plaintiff‘s related contention that he was allowed to visit F‘s classroom unnoticed because the defendants failed to account for students who were dismissed early but did not leave the high school building, J‘s testimony plainly established that there was no general practice or requirement for staff members to account for students permitted to leave the building, much less a clear directive compelling them to account for the whereabouts of those students in a prescribed manner.
- The plaintiff‘s claim that he fell within the identifiable person-imminent harm exception to discretionary act immunity was unavailing, as nothing in the record gave rise to a genuine issue of material fact that it would have been apparent to J or other staff members that F was so likely to harm the plaintiff that the defendants had an unequivocal duty to act to prevent such harm: the record made clear that the plaintiff and F took steps to avoid raising suspicion about the nature of their relationship, and there was no evidence to suggest that the plaintiff‘s repeated visits to F‘s classroom should have made it apparent that a sexual assault was imminent, particularly when the plaintiff had an ostensibly legitimate reason for visiting F‘s classroom due to his involvement in the school play; moreover, the defendants received no complaints concerning F prior to the discovery of the abuse, her recommendations for the theater teaching position were all positive, and nothing in the record suggested that any staff member reasonably would have anticipated that a sexual assault of the plaintiff or any student would be the immediate result of F‘s relaxed classroom setting, particularly in light of the fact that it was a space intended for dramatic arts instruction; furthermore, there was no basis in the record to conclude that J or any staff member wilfully ignored circumstances that otherwise would have alerted them to the possibility of imminent and immediate harm, as they were under no duty to ask questions beyond that which was immеdiately apparent.
Argued March 8—officially released August 23, 2022
Procedural History
Action to recover damages for, inter alia, the defendants’ alleged negligence, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Wahla, J., granted the defendants’ motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.
Rosalie D. Louis, for the appellant (plaintiff).
Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, for the appellees (defendants).
Opinion
The following facts, which we view in the light most favorable to the plaintiff as the nonmoving party, and procedural history provide the necessary background for our resolution of this appeal. During the 2016-2017 academic year, the plaintiff was fifteen years old and a sophomore at the high school. He and approximately sixty to seventy-five students at the high school were enrolled in afternoon classes at the Educational Center for the Arts (arts center) and therefore were dismissed from the high school at 12:30 p.m. Monday through Thursday.
Frechette began working for the board as a theater teacher at the high school in 2013. It was her first experience teaching high school students. Prior to that position, she had taught second and third grade students for fifteen years. The board offered Frechette the position after conducting a background check, which revealed no prior criminal history, and contacting her professional references, each of whom provided a positive recommendation. Prior to the events giving rise to this appeal, neither Johnson nor the board had received any complaints about Frechette, and her personnel file was devoid of any disciplinary actions.
In addition to her teaching duties, Frechette supervised and directed an extracurricular school play. In October, 2016, Frechette held a meeting for students interested in participating in the play and asked them to disclose their contact information, including a cell phone number, and sign a commitment form.4 Frechette collected this information to communicate with students about the rehearsal schedule. Frechette also occa-sionally met with students involved in the play for one-on-one singing and acting lessons. Johnson did not know that Frechette met with students privately for lessons, but the school‘s guidance counselor and other teachers were aware of that.
The plaintiff was not enrolled in any of Frechette‘s classes, but he auditioned for and was cast in the play. In November, 2016, Frechette began to send text messages from her personal cell phone to the plaintiff and other students about rehearsals and matters related to the play. Subsequently, after learning that the plaintiff was not performing well in his English class, Frechette told the plaintiff‘s English teacher that she would “get [the plaintiff] back on track” and began sending text messages to the plaintiff about his English assignments. The plaintiff also sent text messages to Frechette after rehearsals to inquire about whether she had any feedback about his performance. Eventually, the plaintiff and Frechеtte‘s conversations became more intimate, and Frechette disclosed to the plaintiff that she was having marital problems.5
By December, 2016, Frechette and the plaintiff had begun exchanging sexually suggestive messages. One evening in mid-December, Frechette and the plaintiff discussed
The plaintiff did not tell anyone that he and Frechette had sexual contact because she had warned him that she could “get in big trouble” and he was concerned that she would be fired. Before any such contact occurred, the plaintiff ensured that he and Frechette were alone in her classroom and that the classroom door was closed. Additionally, they both tried to keep quiet to avoid alerting anyone passing by the classroom. According to the plaintiff, no one witnessed any of the sexual conduct between them.
On January 5, 2017, Frechette picked up the plaintiff from the arts center after his afternoon classes ended and drove him to the high school. They had agreed to meet that day under the guise that she was providing him a one-on-one voice lesson. Frechette previously had met with the plaintiff privately on two other occasions for voice lessons. After they arrived at the high school, they went to her classroom and started kissing. They eventually moved to one of the dressing rooms adjoining the auditorium stage, which was near Frechette‘s classroom. Shortly thereafter, a security guard entered the dressing room and discovered the plaintiff sitting with his shoes off on a makeshift bed and Frechette, who had also removed her shoes, hiding between two costume racks. The New Haven Police Department and the high school administration were immediately notified, and a criminal investigation ensued. Johnson also reported the incident to the Department of Children and Families (department) that same day. Frechette was placed on administrative leave the following day and resigned from her position in May, 2017. She subsequently pleadеd guilty to one count of risk of injury to a child and was sentenced to ten years of imprisonment, execution suspended after nine months, followed by ten years of probation.
On July 12, 2018, the plaintiff commenced this negligence action, seeking damages pursuant to
On October 30, 2019, following discovery, the defendants moved for summary judgment on all counts of the complaint on, inter alia, the grounds that the plaintiff‘s claims were barred by statutory and common-law governmental immunity. In support of their motion, they argued that they had satisfied any ministerial duties owed to the plaintiff under the mandatory reporting statutes and that the other conduct alleged in the comрlaint involved discretionary governmental acts. In addition, the defendants argued that the claim against the board pursuant to
In a memorandum of decision filed November 13, 2020, the trial court granted the defendants’ motion for summary judgment. Relevant to this appeal, the court сoncluded that nothing in the record supported the plaintiff‘s assertion that the defendants had knowledge of, or reasonable cause to suspect prior to January 5, 2017, that Frechette was sexually abusing the plaintiff. The court noted the plaintiff‘s testimony that, to his knowledge, no one had observed the inappropriate physical contact between him and Frechette and that they took measures to avoid being discovered. The court also concluded that the complaint did not allege a violation of any ministerial duties by the defendants. In addition, on the basis of the pleadings and evidentiary record, the court concluded that, to the extent the plaintiff alleged that the defendants were liable for negligence arising from discretionary acts, those claims were barred by governmental immunity because the plaintiff failed to establish that there existed a genuine issue of material fact with respect to whether he
Before turning to the merits of the plaintiff‘s claims on appeal, we set forth the standards that govern our review of a trial court‘s decision to grant a motion for summary judgment and provide an overview of the doctrine of governmental immunity. A party is entitled to summary judgment “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.” Practice Book § 17-49. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle [the party] to a judgment as a matter of law . . . .” (Internal quotation marks omitted.) Ramos v. Branford, 63 Conn. App. 671, 677, 778 A.2d 972 (2001). “The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue . . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant‘s affidavits and documents.” (Internal quotation marks оmitted.) McCarroll v. East Haven, 180 Conn. App. 515, 521, 183 A.3d 662 (2018).
“A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff‘s claim and involves no triable issue of fact. . . . Our review of the trial court‘s decision to grant a motion for summary judgment is plenary.” (Internal quotation marks omitted.) Thivierge v. Witham, 150 Conn. App. 769, 773, 93 A.3d 608 (2014). Accordingly, we must determine whether “the court‘s conclusions were legally and logically correct and find support in the record.” (Internal quotation marks omitted.) Kusy v. Norwich, 192 Conn. App. 171, 176, 217 A.3d 31 (2019), cert. denied, 333 Conn. 931, 218 A.3d 71 (2019).
As a general rule, municipalities are “immune from liability unless the legislature has enacted a statute abrogating such immunity.” Gaudino v. East Hartford, 87 Conn. App. 353, 355, 865 A.2d 470 (2005). “The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in . . .
Whether a municipality may be held liable for its negligent acts or omissions, however, depends on the nature of the alleged acts. “[Section]
“The [common-law] doctrines that determine the tort liability of municipal employees are well established. . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of [discretionary] governmental acts. . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . The hallmark of a discretionary act is that it requires the exercise of judgment.” (Internal quotation marks omitted.) Cole v. New Haven, 337 Conn. 326, 336–37, 253 A.3d 476 (2020). Ministerial acts, on the other hand, “are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.” (Internal quotation marks omitted.) Segreto v. Bristol, 71 Conn. App. 844, 851, 804 A.2d 928 (2002), cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
“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. . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.” (Internal quotation marks omitted.) Merritt v. Bethel Police Dept., 120 Conn. App. 806, 811, 993 A.2d 1006 (2010).
I
On appeal, the plaintiff first contends that there is a genuine issue of material fact with respect to whether thе defendants breached a ministerial duty to report suspected child abuse under
A
The plaintiff first asserts that the trial court improperly rendered summary judgment in favor of the defendants because there exists a genuine issue of material fact with respect to whether Johnson violated a ministerial duty to report suspected child abuse pursuant to
We begin our discussion by noting that the parties agree that Johnson had a ministerial duty to report suspected child abuse; see
In response, the defendants argue that the mere fact that Frechette had created a relaxed environment in her classroom, met with students one on one, and sent text messages to students participating in the play about the rehearsal schedule could not, as a matter of law, constitute reasonable cause to suspect that the plaintiff or any other student was at imminent risk of sexual abuse. The defendants emphasize that, prior to January 5, 2017, they never had received any complaints about Frechette‘s communications or contact with students and that there had been no disciplinary notations in her record. Additionally, they note that it is undisputed that Frechette and the plaintiff always ensured that they were alone before any sexual contact occurred between them and that there was no evidence that any staff member or Johnson knew of the communications between Frechette and the plaintiff.
The defendants also argue that the plaintiff in this case has produced even less evidence in support of his claim that they had reasonable cause to suspect that he was at imminent risk of sexual abuse than the plaintiffs had produced in Doe v. Madison, 340 Conn. 1, 262 A.3d 752 (2021),11 a recent case in which our Supreme Court concluded that municipal defendants had no reasonable cause to suspect that students were at imminent risk of sexual abuse. Id., 24-25. In that appeal, the plaintiffs, three male students, had brought separate and consolidated negligence actions against a board of education and a high school principal (Madison defendants), seeking damages for injuries arising from sexual abuse by a female teacher. Id., 5. The trial court rendered summary judgment in favor of the defendants on the ground of governmental immunity, and the plaintiffs appealed. Id. On appeal to our
Our Supreme Court concluded that the trial court properly had granted summary judgment, noting that the mandatory reporting statute was “[c]onsistent with case law governing the concept of ‘reasonable suspicion’ in the criminal law context . . . .” Id., 24. Similar to the concept оf reasonable suspicion, a mandated reporter‘s suspicion or belief that a child is at imminent risk of abuse “does not require certainty or probable cause.” (Emphasis omitted; internal quotation marks omitted.) Id.; see also
Applying the foregoing principles, our Supreme Court in Doe v. Madison, supra, 340 Conn. 1, reasoned that, based on the totality of the circumstances, none of the school‘s employees had reasonable cause to suspect that the plaintiffs were at imminent risk of sexual abuse by the teacher. See id., 24–25. It emphasized that, prior to the incidents giving rise to the plaintiffs’ actions, the teacher had been held in high regard by her colleagues, and her record was unblemished. See id., 25. Furthermore, even though her husband occasionally had concerns about her conduct
Finally, the court disagreed that it should have been apparent tо school employees that the plaintiffs were being sexually abused when viewing the evidence in the aggregate, stating that such a “piling of inferences distorts the actual reality apparent to the various employees in real time.” id., 27. The court concluded that attributing knowledge of all of the facts to each employee for purposes of determining whether there existed “reasonable cause to suspect sexual abuse or imminent risk thereof [was] akin to charging the various high school employees with the responsibility of viewing a completed jigsaw puzzle, when all any of them could see at any relevant time was a piece or two.” id., 28.
Turning to the facts of the present case, viewed in the light most favorable to the plaintiff, we conclude that the plaintiff has failed to demonstrate that there is a genuine issue of material fact with respect to whether Johnson or any other staff member had reasonable cause to suspect that Frechette was sexually abusing the plaintiff or exposing him to an imminent risk of sexual abuse. Frechette‘s personnel file was devoid of complaints or disciplinary actions prior to the events underlying this appeal, and her application for the high school teaching position was accompanied by positive recommendations from her references. See id., 25 (no reasonable cause to suspect abuse where, inter alia, teacher‘s “personnel record was unblemished, and she was held in uniformly high regard by her colleagues and students“). And, although the school administration knew that Frechette had collected contact information from all of the students involved in the play, that act alone simply would not cause a reasonable person to suspect that any of those students were at imminent risk for sexual abuse. Nor would that fact, when considered in conjunction with other generally known circumstances, such as the nontraditional setting of Frechette‘s classroom, give rise to reasonable suspicion that Frechette‘s students were at risk of serious harm. There similarly is nothing inherently suspicious about a teacher occasionally meeting with a student privately in connection with a supervised extracurricular activity. See id., 26 (teacher had “seemingly legitimate” reason for summoning students to her classroom in her capacity as faculty yearbook advisor). Johnson testified to that effect, stating that it was “[n]ot uncommon at all” for a student involved in an extracurricular activity to be seen with a staff member supervising that activity. See Doe v. Madison, supra, 340 Conn. 25-26 (observing that staff member and faculty testimony established that students’ repeated visits to teаcher‘s classroom did not appear unusual because it was not uncommon for teachers to summon students
Moreover, even if we were to assume that the school administration knew that Frechette was sending text messages to students about school related matters, none of the evidence presented suggests that Johnson or any other staff member was aware that Frechette had exchanged sexually suggestive messages with the plaintiff. Although Frechette used her personal cell phone to converse with the plaintiff, neither the plaintiff nor Frechette disclosed to anyone that they were communicating by text message prior to the commencement of the investigation into Frechette‘s conduct.
Finally, before any sexual contact occurred between the plaintiff and Frechette, the plaintiff testified that he had ensured that they were alone and that both he and Frechette took measures to be discreet so as to not be discovered. According to the plaintiff, no staff member had witnessed them engaging in any sexual conduct. The plaintiff produced no evidence to the contrary.
In sum, considering the totality of the circumstances, the plaintiff has failed to establish the existence of a genuine issue of material fact regarding whether the defendants had knowledge or reasonable cause to believe that Frechette had abused or was imminently likely to sexually abuse a student prior to the date on which a report was made. Consequently, we conclude that the trial court correctly determined that the plaintiff failed to raise a genuine issue of material fact regarding whether the defendants violated a ministerial duty under Connecticut‘s mandated reporter statutes.
B
The plaintiff next claims that the trial court failed to recognize two additional ministerial duties that he claims were established by Johnson‘s deposition testimony and, therefore, improperly rendered summary judgment in favor of the defendants on the ground that the acts complained of were discretionary. The defendants counter that Johnson‘s testimony did not raise a genuine issue of material fact regarding the existence of a “nondiscretionary, unwritten municipal rule or policy” and that the trial court correctly determined that, in the absence of a clear directive, the alleged negligent acts were discretionary in nature. We agree with the defendants, albeit partly on different grounds.
“[O]ur courts consistently have held that to demonstrate the existence of a ministerial duty on the part of a municipality and its agents, a plaintiff ordinarily must point to some statute, city charter provision, ordinance, regulation, rule, policy, or any other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judg-ment or discretion.” (Emphasis added; internal quotation marks omitted.) Kusy v. Norwich, supra, 192 Conn. App. 177. A ministerial duty, however, “need not be written and may be created by oral directives from superior officials, the existence of which are established by testimony.” Doe v. Madison, supra, 340 Conn. 32; see also Wisniewski v. Darien, 135 Conn. App. 364, 374, 42 A.3d 436 (2012) (municipal official‘s testimony may provide evidentiary basis for existence of ministerial duty). In relying on an official‘s testimony to establish the existence of a ministerial duty, “[s]pecificity is required in all aspects of the directive,” and, therefore, descriptions of general practices or expectations that merely guide an employee‘s exercise of discretion are insufficient to establish a ministerial duty. Doe v. Madison, supra, 32; see also Strycharz v. Cady, 323 Conn. 548, 566-67, 148 A.3d 1011 (2016) (school superintendent‘s testimony that school principal “had a duty to assign school staff members to different posts, including the bus port, and that he lacked the discretion not to do so” provided sufficient basis from which “to conclude that school administrators had the ministerial duty to assign staff members to monitor students throughout the school” but lacked specificity with respect to certain aspects of directive and, cоnsequently, there was no basis to conclude that those same administrators had duty to ensure staff performed their assignments). Whether a discretionary or ministerial duty exists presents a question of law and, therefore, is subject to plenary review. See, e.g., Ventura v. East Haven, 330 Conn. 613, 634, 199 A.3d 1 (2019); see also Thivierge v. Witham, supra, 150 Conn. App. 773-74 (“[t]he issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law” (internal quotation marks omitted)).
In support of his claim that the record establishes two additional ministerial duties, the plaintiff first points to Johnson‘s deposition testimony in which she stated that, “technically, actually, nobody should have had a free period” during the relevant school year. During her deposition, Johnson explained that some students who were teachers’ assistants incorrectly believed that the class period in which they assisted a teacher was a free period but that, technically, it was not, and that all other students who did not have a full load of classes were dismissed after their last class ended. The plaintiff claims that the defendants violated this alleged duty because he did not have classes at the high school or arts center on Fridays between 12:30 and 2 p.m., resulting in a free period in his schedule. He argues that the defendants’ negligence in adhering to the prohibition against free class periods allowed him to be “lure[d]” into Frechette‘s classroom and sexually abused.
Second, in response to a question in her deposition about whether “attendance [is] taken in every class,” Johnson answered in the affirmative and subsequently stated that teachers are “required to notify the parent . . . [a]t some point in the day” if a student is absent from class. The plaintiff contends that this testimony established a ministerial duty for teachers to take attendance and that the defendants violated this purported duty when they failed to monitor students who were dismissed early, such as the arts center students, to ensure they actually exited the high school when their high school classes ended and, instead, only verified that students leaving the building prior to the end of the school day were permitted to do so.
On the basis of our review of Johnson‘s deposition testimony, we conclude that the trial court properly determined that the plaintiff failed to establish a genuine issue of material fact about whether the defendants violated a ministerial duty prohibiting free periods. Johnson merely observed that no student “should have had” a free period in his or her schedule and that students whose class schedule ended before the school day concluded were dismissed early. (Emphasis added.) Johnson did not state unequivoсally that she had communicated to her employees a mandatory and prescribed method for creating class schedules without free periods or allude to the existence of any such policy. See Doe v. Madison, supra, 340 Conn. 30 (athletic director‘s statement that he expected subordinates “to enforce certain standards
The same is true with respect to Johnson‘s testimony about the school‘s attendance policy. Her statements, in context, are not the type of specific and clearly stated oral directives that our cases have recognized as sufficient to establish a ministerial duty. See Strycharz v. Cady, supra, 323 Conn. 566-67; Wisniewski v. Darien, supra, 135 Conn. App. 374-78. And, even if we were to agree with the plaintiff that Johnson‘s affirmative answer to the question of whеther “attendance [is] taken in every class” and her subsequent statement that teachers are “required to notify the parent . . . [a]t some point in the day” when a student is absent are sufficient to create a genuine issue of material fact about whether the defendants had a ministerial duty to take attendance in every class, the defendants would nevertheless be entitled to summary judgment because the plaintiff proffered no evidence establishing that the defendants had breached this duty. Nothing within the evidentiary record in this case establishes that any of the plaintiff‘s teachers failed to take attendance in class on the days and times in question or subsequently failed to notify his parents of his absence from class. On the contrary, the plaintiff fails to even allege as much in support of this claim.
The crux of the plaintiff‘s argument with respect to an alleged ministerial duty to take attendance is that the defendants failed to account for students who were dismissed early but chose not to leave the high school building. He argues that the defendants’ lack of oversight concerning whether arts center students exited the building when dismissed after their last high school class ended allowed him to visit Frechette‘s classroom unnoticed, leading to an instance of sexual abuse. Johnson did not testify, however, that teachers were required to take attendance in every class and also account for students who had been excused, yet remained in the building. In fact, Johnson repeatedly testified to the contrary. She explicitly stated that security staff did not routinely attempt to locate students who had been dismissed but had failed to leave the premises.13 Her testimony plainly established that there was no general practice or requirement for staff members to account for students permitted to leave the building,
As a result, we conclude that Johnson‘s deposition testimony did not create a genuine issue of material fact about whether the defendants violated a ministerial duty to prohibit free periods or take class attendance.
II
The plaintiff next claims that, even if the defendants’ acts or omissions were discretionary in nature, the court improperly concluded that the defendants were entitled to governmental immunity because there exists a genuine issue of material fact about whether he was an identifiable person subject to imminent harm. In support of this claim, he essentially relies on the same evidence and arguments set out in part I A of this opinion.
As we previously have noted, municipalities and their employees generally are shielded from liability arising from their negligent acts or omissions that require the exercise of judgment or discretion in the performance of official functions. See, e.g., Cole v. New Haven, supra, 337 Conn. 336-38. Nonetheless, our courts recognize three exceptions to discretionary act immunity under which liability may attach; see, e.g., Doe v. Board of Education, 76 Conn. App. 296, 300, 819 A.2d 289 (2003); each representing “a situation in which the public official‘s duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity—to encourage municipal officers to exercise judgment—has no force.” (Internal quotation marks omitted.) Northrup v. Witkowski, 175 Conn. App. 223, 234, 167 A.3d 443 (2017), aff‘d, 332 Conn. 158, 210 A.3d 29 (2019).
The plaintiff claims that he falls within the identifiable person-imminent harm exception to governmental immunity.14 The identifiable person-imminent harm “exception applies 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 . . . .” (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350, 984 A.2d 684 (2009). To fall within this exception to discretionary act immunity, a plaintiff must establish “(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.” (Internal quotation marks omitted.) Doe v. Madison, supra, 340 Conn. 36. “[T]he ultimate determination of whethеr [governmental] immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [in which case] resolution of those factual issues is properly left to the jury.” (Internal quotation marks omitted.) Washburne v. Madison, 175 Conn. App. 613, 629, 167 A.3d 1029 (2017), cert. denied, 330 Conn. 971, 200 A.3d 1151 (2019). Our analysis of the plaintiff‘s claim in the present appeal focuses on the imminence and apparentness prongs of the identifiable person-imminent harm exception.15
In Doe v. Madison, supra, 340 Conn. 1, our Supreme Court held that the plaintiffs in that case failed to satisfy the imminent harm to identifiable person exception to governmental immunity. See id., 36-39. Although it acknowledged that sexual assault victims suffer unmistakable serious harm, the court concluded that the record on summary judgment in that case failed to create a genuine issue of material faсt about whether any observer reasonably would have anticipated a sexual assault given the teacher‘s “generally clandestine pattern of behavior” to avoid raising suspicion. id., 38. It further noted that, like the factual record in the present appeal, the teacher‘s professional record was unblemished prior to the discovery of the assaults and that there was undisputed evidence that students routinely visited teachers’ classrooms for legitimate extracurricular reasons, and, therefore, it would not have been apparent to any staff members that the plaintiffs may be subjected to an imminent harm. id., 38-39.
For many of the same reasons our Supreme Court articulated in rejecting the plaintiffs’ claim in Doe v. Madison, supra, 340 Conn. 1, we conclude that the summary judgment record in this case fails to create a genuine issue of material fact about whether it was reasonably apparent to Johnson or to any other staff member that Frechette was so likely to harm the plaintiff that any of the defendants had an unequivocal duty to act to prevent the harm.16 The record makes clear that the plaintiff and Frechette took steps to avoid raising suspicion about the
We also rеject the plaintiff‘s assertion that the imminence of the harm would have been apparent to Johnson and other staff members if they had chosen to make further inquiries instead of deliberately overlooking cir-cumstances that culminated in his being sexually abused. There is no basis in the record to conclude that Johnson or any staff member wilfully ignored circumstances that otherwise would have alerted them to the possibility of imminent and immediate harm. Moreover, the plaintiff‘s contention is at odds with our Supreme Court‘s precedent, which has held that, in considering whether a harm is apparent for the purposes of the identifiable person-imminent exception, “there is no inquiry into the ideal course of action for the government officer under the circumstances. Rather, the apparentness requirement contemplates an examination of the circumstances of which the government officer could be aware, thereby ensuring that liability is not imposed solely on the basis of hindsight . . . .” Edgerton v. Clinton, 311 Conn. 217, 228 n.10, 86 A.3d 437 (2014). A government actor is under no duty to ask questions beyond that which is immediately apparent. See Doe v. Madison, supra, 340 Conn. 39 (neither staff members nor hallway monitors had duty to ask questions beyond what was immediately apparent with respect to teacher summoning students from other classes for seemingly legitimate reasons); Fleming v. Bridgeport, 284 Conn. 502, 535, 935 A.2d 126 (2007) (although police officers might have made further inquiry by asking more pertinent questions, nothing in record demonstrated that it was apparent to officers that plaintiff would have been subjected to imminent harm).
The plaintiff has failed to identify any facts in the record creating a genuine issue of material fact about whether it was reasonably apparent to the defendants that their failure to act would subject him to imminent harm. Accordingly, we conclude that the trial court properly granted the defendants’ motion for summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.