JOSEPH STRYCHARZ ET AL. v. RICHARD D. CADY ET AL.
(SC 19507)
Supreme Court of Connecticut
Argued November 6, 2015—officially released November 15, 2016
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
Albert L. J. Speziali, with whom, on the brief, were Thomas J. Keramidas and Paul Costa, for the appellants (plaintiffs). Scott R. Ouellette, with whom, on the brief, were James G. Williams and Ryan J. McKone, for the appellees (defendant town of Colchester et al.).
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Opinion
The following undisputed facts and procedural history are relevant to our resolution
For some time, the safety of the intersection in front of the school had been a matter of concern for the town and school administrators. In light of these concerns, in the spring of 2006, Loiselle and Jenny Contois, the town‘s first selectperson, organized a committee of school and town administrators and local and state police officers to address traffic and pedestrian safety at the intersection. The committee undertook an initiative that called for, inter alia, the cutting and trimming of trees to improve sight lines at the intersection, continuing education of student drivers about safe driving, petitioning the state to install a traffic signal, and continuing regular police enforcement of speed limits in the vicinity. In addition, the initiative expressly directed Loiselle to investigate options for hiring a traffic agent for the intersection. Sometime after the committee was formed, Loiselle, at the request of the board, contacted the Connecticut Interlocal Risk Management Agency (CIRMA), an insurance carrier for the board and the town, and requested, among other things, that it assess the need for a traffic agent at the intersection. In response to Loiselle‘s request, Jeffrey Rogers, CIRMA‘s risk control consultant, assessed the intersection and made several recommendations, including a recommendation to use a trained traffic agent and to install signs at the entrances to the crosswalk that would advise pedestrians not to enter the roadway until it was safe to do so. Thereafter, the board reviewed CIRMA‘s recommendations and, on June 19, 2007, instructed Loiselle to contact the town‘s police commission “regarding a shared responsibility for the crossing guard/traffic agent.” When Loiselle addressed the police commission on July 23, 2007, she indicated that there was “an immediate need” for a crossing guard at the intersection. The police commission agreed that a traffic agent at the intersection was needed but informed the board that the town would have to shoulder
In the meantime, the school maintained an ongoing student supervision program designed to enhance student safety. In accordance with that program, Mathieu was responsible for assigning school staff to supervisory duties throughout the school. As part of the program, two staff members were assigned, on a weekly rotating basis, to the bus port, both in the morning and in the afternoon. One of the reasons for the morning duty was to ensure that arriving students did not leave the school premises and safely proceeded directly into the school building. Instead of assigning school staff members to their posts personally, Mathieu delegated that duty to McCubrey.9 According to McCubrey‘s deposition testimony, she drafted a duty roster each summer before the start of the school year and then provided it to school staff members. The roster informed staff members about their assigned dates, times and respective posts, and advised them of expectations and responsibilities with regard to their duties, including the bus port duty.10
In the summer before the school year commencing in the fall of 2007, however, McCubrey was out of work on medical leave. As a result, McCubrey prepared the outlines for the duty roster and submitted them to Sward‘s office, where, as McCubrey explained, the outlines may have been “tweaked” further.11 She was unable to identify, however, who had received the outlines or what happened to them following their submission to Sward‘s office. Nevertheless, McCubrey insisted, both in her responses to the plaintiff‘s interrogatories and at her deposition, that the roster had been finalized and distributed to the staff by the beginning of the school year.12 No copies of the outlines or the actual roster could be located, however. In addition, the school was unable to produce the names of persons assigned to bus duty on the day of the accident or during the two weeks immediately preceding it.
The plaintiff followed a regular routine on school days beginning on September 5, 2007, the first day of the school year, and continuing until the day of the accident on September 20, 2007. The plaintiff took the school bus every morning and arrived at school at 7:15 a.m. On most days, upon his arrival at the school‘s bus port, the plaintiff would walk back to the crosswalk, traverse Norwich Avenue to leave school grounds, and smoke a cigarette before returning
On the morning of September 20, 2007, the plaintiff, who had just begun his freshman year, took the bus to school, and, while on the bus, he and his friend, Alexander Lily, decided to have a cigarette before going to class. The boys agreed to leave school grounds by crossing to the other side of Norwich Avenue even though they knew that doing so without explicit authorization violated school policy. Once at the school‘s bus port, the plaintiff and Lily conversed momentarily and then proceeded directly to the crosswalk at the intersection of the school‘s driveway and Norwich Avenue. As the plaintiff was crossing Norwich Avenue, however, he was struck by a vehicle driven by the named defendant, Richard D. Cady. According to the plaintiff, no school faculty or staff members were visible at the bus port, and no one sought to prevent him from leaving school property.
The plaintiff thereafter commenced this action in October, 2009, asserting that his injuries were caused by Cady‘s negligence and the negligence of certain other defendants. With respect to the board members, the plaintiff alleged, inter alia, that they had breached their duty to provide a safe school setting in accordance with
With respect to Loiselle, the plaintiff alleged that she had breached her duty to enforce the rules governing student safety as required by policy 5142 (a) of the Colchester Public Schools Policies, Regulations and Bylaws (School Policies and Regulations).15 In particular, the plaintiff
With respect to Mathieu, McCubrey and Sward, the plaintiff, in addition to repeating the averments leveled against Loiselle, alleged that they had breached their duty to protect students from foreseeable dangers. In particular, the plaintiff alleged that Mathieu, McCubrey and Sward had failed (1) to execute their nondiscretionary ministerial duty to assign staff members to bus duty, and (2) to ensure that the assigned staff members did in fact report for and carry out that bus duty. Finally, the plaintiff sought indemnification from the town pursuant to
Certain defendants moved for summary judgment; see text accompanying footnote 4 of this opinion; asserting that they were entitled to governmental immunity under
The trial court granted the motion for summary judgment. With respect to the plaintiff‘s negligence claims against the members of the board, the court concluded that their duty to provide a safe school environment pursuant to
The court further concluded that, even if the plaintiff was an identifiable victim, the intersection in question did not constitute an imminent harm. Specifically, the court concluded that potential harm was not imminent because it was not limited to a discrete time during which an injury could have occurred. In reaching that conclusion, the trial court relied on the principle articulated by this court in Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994), overruled in part by Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014), in which we held that an icy patch on a school walkway presented an imminent harm to students because the accident could not have occurred at any time in the future but was limited temporally and geographically. The trial court then concluded that, because the risk of an accident at the intersection in question, although possibly substantial, was “ongoing and continuous, rather than imminent and discrete,” the present case was governed by Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), in which this court determined that harm was not imminent if it “could have occurred at any future time or not at all.” Id., 508. Accordingly, the trial court concluded that, because the plaintiff could not satisfy either prong of the identifiable person-imminent harm exception, it did not apply in this case.
In light of its determination, the trial court then proceeded to examine whether there was a genuine issue of material fact with respect to the violation of a ministerial duty on the part of Mathieu, McCubrey and Sward. With respect to Mathieu, the court first determined that he had a ministerial duty to assign staff members to bus duty pursuant to school policy. The court also concluded, however, that Mathieu had fulfilled this duty by delegating to McCubrey the responsibility to create the bus duty roster.18 The court further determined that both McCubrey and Sward also had fulfilled their ministerial duty to assign staff members to bus duty by creating the actual roster. With respect
On appeal, the plaintiff claims that the trial court (1) misconstrued the nature of the ministerial duty owed by Mathieu, McCubrey and Sward in concluding that it was limited to the preparation of a bus duty roster only, and (2) incorrectly determined that Mathieu, McCubrey and Sward had fulfilled or adequately discharged their ministerial duty to ensure that students were supervised at the school bus port. The plaintiff further contends that the trial court incorrectly concluded that (1) he had relinquished his status as a member of the identifiable class of foreseeable victims when he voluntarily left school property and was injured off school grounds, and (2) the identifiable person-imminent harm exception to governmental immunity is inapplicable in the present case as a matter of law. As to the latter, the plaintiff argues that our decision in Haynes v. Middletown, supra, 314 Conn. 303, which was issued during the pendency of the present appeal, contradicts the trial court‘s conclusion that the harm at issue was not imminent.20
With respect to the plaintiff‘s first claim, we agree that, with respect to Mathieu, McCubrey and Sward, the trial court improperly limited the ministerial duty at issue to the preparation of the bus duty roster because that duty extends to ensuring that the roster is distributed to and received by the appropriate staff members. We also agree with the plaintiff that the trial court incorrectly determined that McCubrey and Sward satisfied that ministerial duty as a matter of law because we are persuaded that there remains a genuine issue of material fact as to whether the bus duty roster was created and whether it was timely distributed to staff members. We further conclude, however, that the trial court correctly determined that Mathieu did, indeed, satisfy his ministerial duty because he reasonably chose to delegate responsibility for the bus duty roster to McCubrey. With respect to the plaintiff‘s second claim, we conclude that, even though the plaintiff left school property and was injured on a public road, he remained a member of the identifiable class of foreseeable victims to the extent that the defendants had a duty to supervise him while under their custody and control. We further conclude, however, that the motion for summary judgment was properly
I
We first address the plaintiff‘s claim that the trial court misconstrued the nature of the ministerial duty owed by Mathieu, McCubrey and Sward insofar as the court limited that duty to the preparation of a bus duty roster. The plaintiff contends that limiting the duty in that manner would effectively render it meaningless without a corresponding ministerial duty to ensure that the roster was distributed to staff members and that they in fact performed their assignments. We agree with the plaintiff that Mathieu, McCubrey and Sward had a ministerial duty to prepare and to distribute the bus duty roster to school staff members. We further conclude, however, that the duty to make sure that school staff members were in fact present at their assigned posts was discretionary.
It is well settled that municipal employees “are immune 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. . . . Therefore, [d]iscretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officials and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits . . . from imposing liability for that injury. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. . . . In contrast, municipal [employees] are not immune from liability for negligence arising out of their ministerial acts, [which are] defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . .
“Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases [in which] it is apparent from the complaint . . . [that the nature of the duty] . . . turns on the character of the act or omission complained of in the complaint. . . . Accordingly, [when] it is apparent from the complaint that the defendants’ allegedly negligent acts or omissions
With these principles in mind, we turn to the evidence in the present case. In his complaint, the plaintiff alleged that Mathieu, McCubrey and Sward had failed to execute their ministerial duty (1) to assign school staff members to bus duty, and (2) to ensure that assigned staff members actually reported to and adequately discharged that duty pursuant to the student safety pro- gram. To support his allegations with regard to the existence and the scope of the ministerial duty, the plaintiff relied on the deposition testimony of Loiselle, who testified that Mathieu 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. Significantly, however, Loiselle did not provide any testimony with regard to the ministerial duty of Mathieu, McCubrey and Sward to ensure that school staff members actually performed their assignments. We first conclude that this testimony is sufficient to establish that Mathieu, McCubrey and Sward had the ministerial duty to assign school staff members to their respective posts. See Gauvin v. New Haven, 187 Conn. 180, 186–87, 445 A.2d 1 (1982) (testimony of municipal official can establish nature of duty). We further conclude that, in order to be meaningful, this duty necessarily must also include a corresponding ministerial duty to distribute the bus duty roster among staff members. See Soderlund v. Merrigan, 110 Conn. App. 389, 397, 955 A.2d 107 (2008) (“[t]he issue is not whether the procedure to vacate the warrant was mandatory, but whether it was mandatory to vacate the warrant” [emphasis in original]). After all, a bus duty roster by itself would be useless if it is not distributed to those charged with student supervision, informing them about their respective posts and schedule.
Second, although Loiselle‘s testimony provided a sufficient basis to conclude that school administrators had the ministerial duty to assign staff members to monitor students throughout the school, her testimony contains no directive sufficient to support a finding that Mathieu, McCubrey and Sward had the ministerial duty to ensure that assigned staff members, once notified of their responsibilities, actually reported to and adequately discharged their assignments. Furthermore, the plaintiff has not pointed to anything in the record that can be construed as a directive establishing such a ministerial duty. See Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006) (ministerial acts are acts required by city charter provision, ordinance, regulation, policy, rule or other directive). The only evidence that the plaintiff offers in support of his contention is Mathieu‘s attestation that he, as the school‘s principal, “inquired to ensure completion of the assigned task,” and that school administrators “periodically walked the school grounds” in order to ensure that staff members were properly carrying out their assigned duties. That evidence hardly supports the plaintiff‘s argument; on the contrary, the fact that school administrators engaged in periodic compliance checks necessarily implies that they exercised their judgment or discretion in deciding where, when and in what manner to supervise school staff members.
In the absence of any evidence establishing a ministerial duty to ensure that staff
The plaintiff next argues that the trial court incorrectly concluded that Mathieu, McCubrey and Sward had fulfilled their ministerial duty of assigning school staff members to bus duty by actually preparing the bus duty roster. In particular, the plaintiff contends that the issue of whether a duty properly had been discharged is a question of fact that must be decided by a jury. The plaintiff further contends that
The following additional legal principles inform our analysis of this claim. “Summary judgment procedure is especially ill-adapted to negligence cases . . . [when] . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation.” (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). We have also stated, however, that “[t]he application of the standard of care to the particular facts becomes a question of law . . . when the mind of a fair and reasonable person could reach but one conclusion . . . .” Smith v. Leuthner, 156 Conn. 422, 424–25, 242 A.2d 728 (1968).
We first address the issue of whether Mathieu‘s discharge of his ministerial duty can be decided as a matter of law. There can be no dispute that Mathieu had two distinct ways of discharging his ministerial duty to assign school staff members to different posts throughout the school, including the bus port; Loiselle unambiguously testified that Mathieu could either personally assume the responsibility for assigning staff members, or he could delegate that duty to one of the assistant principals.22 It is also not disputed that Mathieu had, in fact, delegated that duty to McCubrey, and that McCubrey accepted the delegation and was aware of her responsibilities with respect to that duty. On the basis of this uncontroverted evidence, a fair and reasonable person could reach but one conclusion on the issue of Mathieu‘s duty, namely, that Mathieu, having arranged for school staff members to be assigned to their respec- tive posts, including the bus port, discharged his ministerial duty. Accordingly, we conclude that the trial court properly determined that Mathieu had fulfilled his ministerial duty as a matter of law.
We reach a different conclusion with respect to McCubrey and Sward. Our examination of the record reveals that there is an inconsistency between McCubrey‘s deposition testimony and her interrogatory responses. In the latter, McCubrey stated that she had created the bus duty roster during the preceding summer, assigning approximately two weeks of bus duty to each staff member. At her deposition, however, McCubrey testified that she had prepared only outlines of the roster and not the final version of the document. Furthermore, she did not testify that she had personally distributed the bus duty roster to staff members but, rather, that she merely forwarded these outlines to Sward‘s office for possible tweaking. Significantly, McCubrey was unable to identify who, if anyone, had received the outlines, or what happened to them following their submission. The trial court dismissed “any expressed uncertainty” in McCubrey‘s testimony and relied instead on her responses to the plaintiff‘s interrogatories. Unlike the trial court, however, we are not prepared to disregard McCubrey‘s deposition testimony as immaterial. On the contrary,
Equally important, both Mathieu and McCubrey attested that the bus duty roster could not be located because “[g]enerally . . . such duty rosters are not retained after the completion of the calendar school year.” The record reveals, however, that, during the school year in question, on March 19, 2008, the plaintiff filed his notice of intention to bring a civil action pursuant to
Finally, the plaintiff testified that he smoked cigarettes across from the school “[a]lmost every day” over the two weeks immediately preceding the accident, and, in his affidavit, he attested to the fact that he did not see any staff members on duty at the bus port during that time frame. In addition, Lily testified at his deposi- tion that, on the morning of the accident, both he and the plaintiff exited the school bus, had a brief conversation at the bus port and proceeded in the direction of the crosswalk without encountering any staff member as they did so. There was no evidence submitted to the contrary that would allow an inference that the staff members were present but simply not seen by the two students. It is difficult to see how no fewer than four different staff members—two per week—all could have failed to report for bus duty for a two week period if they had been properly notified by McCubrey or Sward. Therefore, we disagree with the trial court‘s determination that McCubrey‘s responses “leave no real doubt that bus duty was actually assigned.” Accordingly, with respect to McCubrey and Sward, we conclude that there remains a genuine issue of material fact as to whether the bus duty roster had been created and whether it was timely distributed to staff members. Thus, the trial court improperly granted the motion for summary judgment as to McCubrey and Sward, and the case must be remanded for further proceedings with respect to this issue.
II
We next address the plaintiff‘s claim that the trial court incorrectly determined that, as a matter of law, the identifiable person-imminent harm exception to governmental immunity is inapplicable to the present case. In particular, the plaintiff contends that the trial court incorrectly concluded that he forfeited his status as a member of the identifiable class of foreseeable victims when he voluntarily left school
The following additional legal principles concerning the doctrine of governmental immunity guide our analysis. “The imminent harm exception to discretionary act immunity [for municipalities and their employees] 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 . . . . By its own terms, this test requires three things: (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. . . . We have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state. . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 329. “[T]he ultimate determination of whether [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.) Haynes v. Middletown, supra, 314 Conn. 313.
We note, at the outset, that the plaintiff does not challenge the trial court‘s determination that the board members and Loiselle were engaged in discretionary conduct. Furthermore, as we previously concluded, Mathieu, McCubrey and Sward also were engaged in discretionary conduct with the exception of their ministerial duty to assign school staff members to bus duty under the student supervision program. Therefore, the plaintiff can prevail against the defendants on his outstanding claims of negligent supervision only if he falls within the identifiable person-imminent harm exception.
A
The plaintiff first contends that the trial court incorrectly concluded that the defendants did not owe him a duty of care because he relinquished his status as a member of the identifiable class of foreseeable victims when he voluntarily left school property. According to the plaintiff, his conduct should not have affected his class status because that status attaches when school officials take custody of a student at the beginning of the school day, at which time they have a duty to protect the student from imminent harm for the remainder of the school day.24 The plaintiff also argues that the defendants owed him a duty of supervision both on and off school grounds, namely, at the bus port and at the crosswalk where he was injured.
We conclude that, in light of the two theories of negligent supervision that the plaintiff alleges, this issue calls for a more nuanced resolution than that provided by the blanket approaches advocated by the plaintiff and the defendants. Specifically, we conclude that school officials may
We have stated that “the 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 . . . .” (Citation omitted; internal quotation marks omitted.) Prescott v. Meriden, 273 Conn. 759, 763–64, 873 A.2d 175 (2005). We have also stated that “this exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims.” (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350–51, 984 A.2d 684 (2009). Our 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.”25 Id., 355; see also id., 356 (“we have interpreted the identifiable person element narrowly as it pertains to an injured party‘s compulsion to be in the place at issue“). In fact, “[t]he only identifiable class of foreseeable victims that we have recognized . . . is that of schoolchildren attending public schools during school hours 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.) Id., 352.
In light of the aforementioned principles, it is inarguable that the plaintiff became a member of the identifi-able class of foreseeable victims when he arrived at school on the school bus: he was a fourteen year old child enrolled in a public school, his attendance was legally required, and his parents were statutorily mandated to relinquish their protective custody to school officials. Accordingly, we agree with the plaintiff and the trial court that the school officials’ duty to protect the plaintiff from imminent harm attached once he arrived at school on the day of the accident.
The trial court concluded, however, that the plaintiff relinquished his class status by voluntarily leaving school property, explaining that a school‘s liability is strictly limited to injuries that occur on school property. In so concluding, the trial court observed that the present case “is analogous to the line of cases that have declined to consider students attending after-school programs or activities to be within a class of identifiable victims . . . .”26 Strycharz v. Cady, Superior Court, judicial district of New London, Docket No. KNL-CV-09-5013484-S (November 7, 2013); see, e.g., Coe v. Board of Education, 301 Conn. 112, 119, 19 A.3d 640 (2011) (upholding trial court‘s conclusion that student injured at middle school graduation dance held at off-school site was not member of identifiable class of foreseeable victims because, inter alia, she was not required to be at dance); Durrant v. Board of Education, 284 Conn. 91, 96, 104, 931 A.2d 859 (2007) (holding that mother, whose six year old child was attending optional after-school day care program conducted in conjunction with public school, was not member of identifiable class of foreseeable victims when she slipped and fell because of puddle of water on school property while picking up her daughter); Prescott v. Meriden, supra, 273 Conn. 763–65 (concluding that parent injured while watching son playing in high school football game was not required to be at game and thus not class member); see also DeConti v. McGlone, 88 Conn. App. 270, 274, 869 A.2d 271 (2005) (“Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred“), cert. denied, 273 Conn. 940, 875 A.2d 42 (2005). Although we agree with the trial court that, generally speaking, our courts have denied identifiable victim status unless the plaintiff was required to be at the location where the injury occurred, the cited cases are distinguishable because they dealt with the question of whether the plaintiffs even belonged in the class of foreseeable victims as it is defined by our case law. In the present case, however, we must determine whether, and if so, under what circumstances, the status of a plaintiff who is a member of that class may be altered by the plaintiff‘s own conduct. Under the facts of this case, we must also decide whether class membership—and consequently a school‘s liability—can extend beyond the limits of school property. For the reasons set forth hereinafter, we disagree with the trial court and conclude that school officials may be held liable for injuries occurring off school grounds if the officials’ negligence on school property was the proximate cause of the injuries.
Under our case law, the main purpose of charging school officials with a duty of care is to ensure that schoolchildren in their custody are protected from imminent harm. See, e.g., Haynes v. Middletown, supra, 314 Conn. 315 n.6 (schools have duty to protect students from imminent harm); Burns v. Board of Education, supra, 228 Conn. 649 (“[a]t least during school hours on school days, when parents are statutorily compelled to relinquish protective custody of their children to a school board and its employees, the superintendent has the duty to protect the [students] in the board‘s custody from [imminent harm]“). The imposition of that duty is predicated, in part, on our settled understanding of the need “to safeguard children of tender years from their propensity to disregard dangerous conditions.” (Internal quotation marks omitted.) Ruiz v. Victory Properties, LLC, 315 Conn. 320, 333, 107 A.3d 381 (2015); see also Hoyem v. Manhattan Beach City School District, 22 Cal. 3d 508, 520, 585 P.2d 851, 150 Cal. Rptr. 1 (1978) (“the duty to supervise school children is imposed in large part in recognition
We first observe that a per se rule barring liability would relieve school officials of liability even under circumstances in which school activities take place off school grounds. Thus, even if the school was exercising custody and control over schoolchildren during school hours on an educational field trip, a per se rule would preclude liability if a child was injured by an apparent and imminently harmful condition at the offsite location. Such a result is not compelled by the plain terms of the identifiable class—schoolchildren attending school during school hours—which makes no mention of school property. Such a result also would be incompatible with the rationale that led this court to designate this group as an identifiable class. Parents who have relinquished control and custody of their children to the school rightly expect that the school will exercise reasonable care, as long as their children remain under the school‘s custody and control.
The same logic compels the conclusion that the school is required to exercise reasonable care to prevent schoolchildren attending school during school hours from leaving school grounds when doing so would expose them to an imminent harm. For example, if the school in the present case were an elementary school, it would seem manifestly unreasonable to foreclose recovery as a matter of law if an unsupervised six year old student was allowed to wander into the intersection at issue and was struck by a car. One may conceive of similarly compelling scenarios involving older students. For example, if a high school had been informed that an active shooter situation was in progress one block away from school, it would be irrational to conclude that school officials would incur no liability if they were to release children from their custody, knowing that students would be walking directly toward the area of the shooting. Such examples, although quite different from the present case, illustrate the infirmity of a rule that automatically absolves schools of any liability merely because an accident occurs off school property. Simply put, when a jury reasonably could conclude that the potential for serious harm to a student is both apparent and great, and that danger, which lurks in close proximity to school property, results in an off-site injury, we see no reason why the doctrine of discretionary act immunity—the purpose of which is to shield municipal officers from liability in their exercise of truly discretionary judgment— would extend to such a situation. Accordingly, we conclude that school officials may be liable for injuries that occur off school property if their negligence on school grounds during school hours was the proximate cause of the injury and the risk
We reach a different conclusion insofar as the plaintiff‘s theory is negligent supervision at the crosswalk. The plaintiff claims that the defendants were negligent by failing to provide a crossing guard at the crosswalk situated on a public road beyond school property. Inherent in the plaintiff‘s theory of liability are two separate assumptions, namely, (1) that the defendants had a duty to provide supervision off school property to students en route to and from school, and (2) that this duty would also extend to a student leaving school grounds in violation of school policy.
We note that this court has had no occasion to consider whether schools have a common-law duty to ensure safe passage to and from school by providing a crossing guard at dangerous intersections or otherwise to supervise them en route.29 We need
B
The plaintiff next contends that our decision in Haynes cannot be squared with the trial court‘s conclusion that the harm at issue in the present case was not imminent. Under Haynes, the plaintiff argues, the harm was imminent, and the school was clearly negligent. Specifically, the plaintiff argues that he adduced evidence demonstrating that (1) the intersection in question subjected students to the risk of being hit by a vehicle, (2) the defendants knew about that risk, and (3) despite their knowledge, the defendants failed to provide adequate supervision of the students at the bus port. The plaintiff further argues that, as in Haynes, this evidence is sufficient to permit a finding that the dangerous intersection, coupled with the defendants’ failure to adequately supervise the students at the bus port, subjected him to imminent harm. The defendants counter that Haynes is distinguishable from the present case because, in contrast to the plaintiff in Haynes, the plaintiff in the present case failed to establish that any
As we previously noted, one of the reasons for the trial court‘s conclusion that the identifiable person-imminent harm exception did not apply to the present case was its determination that the risk of harm was not imminent. In evaluating the risk of harm, the trial court relied on the principles that governed the doctrine of imminent harm at that time. See, e.g., Purzycki v. Fairfield, 244 Conn. 101, 110, 708 A.2d 937 (1998) (concluding that second grade student‘s unsupervised use of school hallway during recess constituted imminent harm because it was limited to specific time period and geographical area, namely, “the one-half hour interval when . . . students were dismissed from the lunch-room to traverse [unsupervised school hallways]“), overruled in part by Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014) however, we reexamined the imminent harm doctrine in Haynes. For that reason, a closer review of that case is necessary.
In Haynes, the plaintiff Jasmon Vereen, a high school student, was injured while changing in the locker room following his physical education class. Haynes v. Middletown, supra, 314 Conn. 308. Although the students had been informed by the school that horseplay in the locker room was not permitted, Vereen and other students were engaged in such horseplay at the time. Id. One of the students pushed Vereen into a locker that had an exposed jagged and rusted edge, and Vereen suffered a cut that left a scar. Id. The evidence established that the locker had been in a state of disrepair for approximately seven months. Id., 308, 325. The evidence also demonstrated that school officials knew that the locker was in a state of disrepair and that horseplay in the locker rooms was an ongoing problem. Id., 325. In the ensuing action, Vereen alleged that the defendant, the city of Middletown (city), and its agents or employees were negligent. Id., 308. The city contended that maintenance of the locker was a discretionary duty not governed by any municipal policy or procedure, thereby shielding it from liability. See id., 308–309. At trial, Vereen conceded that the city‘s acts were discretionary but argued that the identifiable person-imminent harm exception applied “because the condition of the locker presented an imminent harm” to students in the locker room. Id., 309. The trial court concluded that the defective locker did not pose a risk of imminent harm and rendered judgment in favor of the city.31 The Appellate Court subsequently affirmed the trial court‘s judgment. Haynes v. Middletown, 142 Conn. App. 720, 737, 66 A.3d 899 (2013).
On appeal to this court, we revisited and clarified the then existing principle of imminent harm. In particular, we examined our decision in Evon v. Andrews, supra, 211 Conn. 501, in which we explained that a harm is not imminent if it “could have occurred at any future time or not at all.”32 Id., 508. In light of Evon, we concluded that a harm is not imminent unless it is “so likely to happen that it gives rise to a clear duty to correct the dangerous condition creating the risk of harm immediately upon discovering it . . . .” Haynes v. Middletown, supra, 314 Conn. 317. We emphasized that this interpretation of Evon is consistent both with the meaning of the word imminent, that is, “ready to take place“;33 id., 318; and “with our case law holding that the imminent harm to identifiable persons exception represents 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.) Id.
Although this court appeared to narrow the definition of imminent harm in Burns v. Board of Education, supra, 228 Conn. 650, which applied “to harms arising from dangerous conditions that are temporary, if the risk of harm is significant and foreseeable“; (emphasis omitted) Haynes v. Middletown, supra, 314 Conn. 319; we rejected the temporariness requirement in Haynes, overruling Burns in part and noting that Evon did not stand for the proposition that “imminent harms are harms that can . . . happen [only] in the immediate future because they arise from temporary conditions.”34 Id., 320. In doing so, we expressly observed that our statement in Evon “that a harm is not imminent if it could have occurred at any future time or not at all was not focused on the duration of the alleged dangerous condition . . . but on the magnitude of the risk that the condition created.” (Emphasis in original; internal quotation marks omitted.) Id., 322. Thus, in accordance with the implicit rationale of Evon, we concluded that “the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm.”35 Id., 322–23.
Applying that clarified standard to the facts in Haynes, we first held that, because the jury reasonably could infer that school officials knew that the locker had been broken for seven months, and because
In the present case, there is abundant evidence that the defendants were concerned about the safety of students using the crosswalk to walk to and from school. But the safety of the students crossing before and after school, in accordance with school policy, is not at issue in this case. The issue in this case is whether there is sufficient evidence for a jury reasonably to conclude that the school was aware that students were crossing Norwich Avenue in violation of school policy after getting off the bus on school property and before the start of the school day. There is no such evidence. Indeed, all of the defendants who were deposed testified that they had no such knowledge. For example, Mathieu, the principal, testified that, prior to the plaintiff‘s accident, Mathieu had no knowledge from “any source whatsoever” that students were leaving school grounds before the start of school. Indeed, Mathieu stated that he never even considered the possibility of this occurring because, if a student were caught, it would result in his or her suspension from school.
Of course, the plaintiff was not required to prove actual knowledge on the part of the defendants. As we have stated previously, the applicable test for the apparentness prong of the identifiable person-imminent harm exception is an objective one, “pursuant to which we consider the information available to the [school official] at the time of [his or] her discretionary act or omission.” Edgerton v. Clinton, 311 Conn. 217, 231, 86 A.3d 437 (2014). Under that standard, “[w]e do not ask whether the [school official] actually knew that harm was imminent but, rather, whether the circumstances would have made it apparent to a reasonable [school official] that harm was imminent.” Id., 231 n.14. Nonetheless, the plaintiff does not identify any facts in the record that would have made it apparent to the defendants that students arriving by bus were crossing Norwich Avenue before the start of school. Admittedly, the plaintiff claims that he himself did so “almost every day” during the first two weeks of school, and that he observed “many” students doing the same. The plaintiff‘s testimony, however, is insufficient to create a genuine issue of material fact with respect to this issue. As a practical matter, “many” could be five or it could be twenty-five; we simply have no way of knowing and, therefore, no way of knowing whether, on the basis of the sheer magnitude of the problem, it is reasonable to impute knowledge of it to the defendants. The same logic holds for the plaintiff‘s assertion that the other side of Norwich Avenue was “a common area for student[s] to smoke” or Lily‘s deposition testimony that crossing the street to smoke before school “was just a
The plaintiff argues that “[t]he thrust of [his claim] is that if school personnel had performed their duties, upon his arrival at school, [he] would have been safely inside the school building each morning. Instead, he crossed Norwich Avenue each morning to smoke . . . .” Whether school personnel could have prevented the plaintiff from leaving school property, however, although certainly relevant to the plaintiff‘s breach of a ministerial duty claim, is simply irrelevant to the issue of whether it was apparent to them that students were, in fact, leaving school property, which is what the plaintiff must demonstrate to establish the applicability of the identifiable person-imminent harm exception to governmental immunity. Because we are unable to conclude, on the basis of the record before us, that a reasonable juror could find that the circumstances were such that the defendants would have been aware of this problem, the defendants are entitled to judgment as a matter of law on this claim.36
In this opinion ROGERS, C. J., and ZARELLA, McDONALD, ESPINOSA and ROBINSON, Js., concurred.