Burns v. Board of Educ. of City of Stamford, 11284

• Decision Date: 04 May 1993
• Docket Number: No. 11284,11284
• Citation: 30 Conn.App. 594,621 A.2d 1350
• Court: Connecticut Court of Appeals
• Parties: , 81 Ed. Law Rep. 913 David BURNS et al. v. BOARD OF EDUCATION OF the CITY OF STAMFORD et al.

Page 1350

621 A.2d 1350

30 Conn.App. 594, 81 Ed. Law Rep. 913

David BURNS et al. v. BOARD OF EDUCATION OF the CITY OF STAMFORD et al.

No. 11284.

Appellate Court of Connecticut.

Argued Jan. 13, 1993.

Decided March 16, 1993.

Certification granted limited to the

following issue May 4, 1993.

Carolyn W. Alexander, Stamford, for appellants (plaintiffs).

Richard A. Robinson, Asst. Corp. Counsel, with whom, on the brief, was Daniel B. McCabe, Corp. Counsel, for appellees (defendants).

Before DALY, HEIMAN and FREDERICK A. FREEDMAN, JJ.

DALY, Judge.

The plaintiffs, David Burns and Darlene Vrendburgh, David's mother and next friend, instituted this four count action following David's fall on an icy high school courtyard. The plaintiffs appeal from the trial court's rendering of summary judgment in favor of the defendants ¹ on the first, second, and fourth counts of the complaint. ² The trial court granted the motion for summary judgment after determining that the alleged negligent acts were discretionary in nature and that no exception to the doctrine of governmental immunity permitted the claims alleged in those counts. We affirm the judgment of the trial court.

The factual situation is as follows. On January 13, 1988, David, a student at West Hill High School in Stamford, was walking across the courtyard en route to his guidance counselor's office when he slipped and fell on a sheet of ice, fracturing his left elbow. The courtyard is the main access between the two buildings that comprise the high school. The area was not sanded or salted and no warnings had been issued to the students as to its condition. School policy under which the school custodians operated called for inspection of the entire area by the head custodian who would order sanding and salting as necessary.

The gravamen of the fourth count of the complaint is that the defendant superintendent of schools was negligent in failing to ensure that the courtyard was properly salted and sanded and in failing to warn of the icy conditions existing in the courtyard. Counts one and two, brought against the Stamford board of education and the city of Stamford, are derivative in nature. The defendants filed a special defense of governmental immunity.

The superintendent's affidavit, filed in conjunction with the motion for summary judgment, indicated that his duties as superintendent did not include the personal inspection of the grounds of the high school or verification that ice and snow conditions had been corrected. He stated that he did not visit the high school, was unaware of the icy conditions and did not instruct or encourage any student to use the courtyard on the day in question.

The head custodian stated in a deposition that the decision of whether to salt and sand the premises was his to make and was not the superintendent's decision. The defendants filed a motion for partial summary judgment as to the negligence and derivative suit counts, arguing that the superintendent was protected under the doctrine of governmental immunity. The motion was granted.

The plaintiffs raise the following issues on appeal: (1) Are the negligent acts alleged ministerial and thus not barred by governmental immunity? (2) Does the foreseeable victim exception to the doctrine of governmental immunity apply? (3) Is the doctrine of governmental immunity constitutional? (4) Does the doctrine violate public policy such that it should be overturned by judicial fiat?

I

The plaintiffs first claim that the sanding and salting of the courtyard of the high school is a ministerial duty to which the doctrine of governmental immunity does not apply.

"When reviewing a trial court's ruling on a motion for summary judgment, we must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Mingachos v. CBS, Inc., 196 Conn. 91, 111, 491 A.2d 368 (1985); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 292-93, 596 A.2d 414 (1991)." (Internal quotation marks omitted.) West Haven v. Hartford Ins. Co., 221 Conn. 149, 155, 602 A.2d 988 (1992). The plaintiffs do not claim that a genuine issue of material fact existed on any of the counts on which summary judgment was granted. In this appeal, the dispositive issue is whether the defendants were entitled to judgment as a matter of law. "[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." Practice Book § 384. Because there was no duty imposed on the superintendent to ensure that the courtyard was sanded and salted, he was not negligent and, therefore, he was entitled to summary judgment.

"Negligence is a breach of duty.... To sustain a cause of action, the court must determine whether the defendant owed a duty to the plaintiff's decedent and the applicable standard of care.... The existence of a duty is a question of law.... Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Citations omitted; internal quotation marks omitted.) Shore v. Stonington, 187 Conn. 147, 151-52, 444 A.2d 1379 (1982).

According to the defendant superintendent's affidavit: "My duties do not include personally inspecting the grounds at West Hill High School on a regular basis, or to verify that ice and snow conditions have been corrected. I rely on subordinates for the regular maintenance and supervision of school grounds. I did not personally instruct or encourage David Burns or any other student to use the courtyard of West Hill High School on the date of January 13, 1988." General Statutes § 10-157(a) addresses the general responsibilities of the superintendent. Section 10-157(a) provides in part: "Any local or regional board of education shall provide for the supervision of the schools under its control by a superintendent who shall serve as the chief executive officer of the board. The superintendent shall have executive authority over the school system and the responsibility for its supervision...." This statute, which places supervisory responsibility on the superintendent, does not place a specific duty on the superintendent to ensure that the sidewalks and court yards of Stamford schools are salted and sanded. We know of nothing that places such a duty on the superintendent. Furthermore, the head custodian took responsibility for his failure to salt and sand the courtyard because it was his responsibility to do so.

Thus, the duty rested with the head custodian, who is not a party to the suit. The superintendent is not responsible for the actions of the head custodian because at common law government officials are generally not held vicariously liable for the acts of their subordinates. Canning v. Lensink, 221 Conn. 346, 353, 603 A.2d 1155 (1992). Summary judgment was, therefore, properly entered in favor of the superintendent.

Despite the plaintiffs' assertions to the contrary, even if the superintendent possessed a duty, the duty was discretionary and fell within the ambit of the doctrine of governmental immunity. "If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance." Shore v. Stonington, supra, 187 Conn. at 153, 444 A.2d 1379. "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.... On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68, 544 A.2d 1185 (1988); Kolaniak v. Board of Education, 28 Conn.App. 277, 280-81, 610 A.2d 193 (1992).

This case differs from Kolaniak v. Board of Education, supra, where a student also slipped and fell on school grounds because the walkway was not properly shoveled, sanded or salted. The defendants in that case included the supervisor of night custodians and the head of the maintenance staff. Id., at 278 n. 1, 610 A.2d 193. There, the board of education had issued a bulletin stating that walkways were to be inspected and kept clean on a daily basis. We determined that, given the issuance of the bulletin, the trial court properly determined as a matter of law that the supervisor of night custodians and the head of the maintenance staff performed ministerial functions. Id., at 281-82, 610 A.2d 193. In the present case, there was no such directive from the board of education or the superintendent. Unlike the shoveling of school walks in Kolaniak v. Board of Education, supra, which was performed at the behest of the school board, the salting or sanding at issue here was solely the responsibility of the head custodian, and was not a ministerial action performed under the superintendent's direction.

"There is also authority for the proposition that where the duty of the public official to act is not ministerial but instead involves the exercise of discretion, the negligent failure to act will not subject the public official to liability unless the duty to act is clear and unequivocal.... We have recognized the existence of such duty in situations where it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm." (Citation omitted.) Shore v. Stonington, supra. We agree with the defendants that the identifiable person exception does not apply to the present case.

Any duty to sand and salt the courtyard in this case would affect,...