36 Conn. Supp. 293 | Conn. Super. Ct. | 1980
The plaintiff Rosemarie Lostumbo is alleged to have sustained personal injuries as a result of a fall on the grounds of Nathan Hale School, where she was a student, while walking across a sidewalk which was "covered with snow and ice and was uneven, slippery and defective" at the direction of the defendants Krystopic and Goldstein, teachers employed by the defendant board of education of the city of Norwalk. The complaint alleges that the board "had notice and knowledge or with reasonable diligence should have had notice and knowledge of the condition of said passageway but wholly neglected to remedy said defective condition." *294
The complaint consists of two counts, the first as to the board and the second as to the teachers. The board has moved to strike the first count of the complaint on the ground it "does not state a cause of action since said defendant is not subject to civil action by reason of governmental immunity." The plaintiffs' brief in opposition, however, appears to raise the issue of liability of municipal bodies. In the absence of a definitive statement in Connecticut law as to the liability of boards of education for their own torts, on the one hand, and their immunity from suit, on the other, the court will discuss both issues.
It is well settled in Connecticut that absent a legislative enactment providing consent to suit, the state is immune from legal action. Comba v. Ridgefield,
Local boards of education have long been held agents of the state in carrying out the educational interests of the state. Horton v. Meskill,
If we assume, arguendo, that a local board is an agent of the state and that an injured plaintiff, after first obtaining consent to sue from the claims commissioner, successfully litigated his case, it could hardly be suggested that the state pay the judgment; that obligation would rest with the local board. To hold the state financially responsible for a local board's failure to maintain the walkways on school grounds would be unjust. The court must determine whether, in fact, the state is the real party in interest by examining "the essential nature and effect of the proceeding" and whether a judgment would "operate to control the activities of the state or subject it to liability . . . ." Somers v.Hill,
Accordingly, the court finds that the board is not an agent of the state in a negligence action. The doctrine of sovereign immunity, therefore, would not apply here and the board's motion to strike is denied.
The question then is whether the board enjoys immunity from liability as a municipal body. A municipal corporation enjoys qualified immunity in the performance of a governmental function;Fraser v. Henninger,
Although the present lawsuit sounds in negligence, nuisance may have its origin in negligence.Sestero v. Glastonbury, supra, 159. To consider the present action as grounded in nuisance, however, the complaint would have to allege a positive act committed by the board; Bush v. Norwalk,
The plaintiffs argue in their brief in opposition to the motion to strike that a "general allegation of negligence may permit proof of facts showing that the duties involved were ministerial, not discretionary." A ministerial duty is one which is "`to be performed in a prescribed manner without the exercise of judgment or discretion.'" Tango v.New Haven, supra, 205, quoting Wright v. Brown,
The allegations of negligence contained in the present complaint would permit proof of facts establishing the board's failure properly to discharge a ministerial function; for example, that the board was under a duty to provide a plan for maintenance of sidewalks and for routing of the students when icy conditions existed.
For the above reasons, the board's motion to strike is hereby denied.