Burns v. Board of Educ. of City of Stamford

• Decision Date: 08 March 1994
• Docket Number: No. 14767,14767
• Citation: 638 A.2d 1,228 Conn. 640
• Court: Connecticut Supreme Court
• Parties: , 89 Ed. Law Rep. 1151 David BURNS et al. v. BOARD OF EDUCATION OF the CITY OF STAMFORD et al.

Page 1

638 A.2d 1

228 Conn. 640, 89 Ed. Law Rep. 1151

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

No. 14767.

Supreme Court of Connecticut.

Argued Jan. 11, 1994.

Decided March 8, 1994.

Carolyn W. Alexander, Stamford, with whom was Jennifer Cohen, for appellants (plaintiffs).

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

Before PETERS, C.J., and BERDON, NORCOTT, KATZ and PALMER, JJ.

PETERS, Chief Justice.

The principal issue in this certified appeal is whether a school child may bring an action for the negligent maintenance of public school grounds during school hours because he is one of a foreseeable class of victims and thus qualifies for an exception to the doctrine of governmental immunity. The plaintiffs, David Burns and his mother, Darlene Vrendburgh, as next friend, brought a four count action against the defendants, the superintendent of schools, William R. Papallo, the Stamford board of education and the city of Stamford, after David had been injured in a fall on an icy high school courtyard during school hours. The trial court rendered partial summary judgment in favor of the defendants on all counts sounding in negligence on the grounds that the alleged negligent acts were discretionary in nature and that no exception to the doctrine of governmental immunity encompassed such claims. The plaintiffs appealed that decision of the trial court to the Appellate Court, which affirmed, and we granted certification to appeal to this court. We reverse the judgment of the Appellate Court.

The decision of the Appellate Court recites the pertinent facts and procedural history. "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. ¹ 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." Burns v. Board of Education, 30 Conn.App. 594, 596-97, 621 A.2d 1350 (1993).

On the plaintiffs' appeal, ² the Appellate Court held in relevant part that "[b]ecause 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.... [E]ven if the superintendent possessed a duty, the duty was discretionary and fell within the ambit of the doctrine of governmental immunity.... Any duty to sand and salt the courtyard in this case would affect, not only David, but every member of the student population at West Hill High School. [Because it] was not apparent that the failure to salt and sand the high school courtyard would be likely to subject David to imminent harm ... the trial court properly determined that the doctrine of governmental immunity applied and that the foreseeable victim exception was inapplicable. Thus, summary judgment was proper." Id., at 598-601, 621 A.2d 1350.

We granted the plaintiffs certification to appeal limited to the following question: "Whether there is a 'foreseeable class of victim' exception to the governmental immunity doctrine which would include students allegedly the victims of improper school maintenance?" Burns v. Board of Education, 225 Conn. 927, 625 A.2d 825 (1993). We answer this question in the affirmative and, in the circumstances alleged by the pleadings in this case, reverse the judgment of the Appellate Court. ³

The doctrines that determine the tort liability of municipal employees are well established. Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988). The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. " '[A] municipal employee ... has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act.... The word "ministerial" "refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." ...' " (Citations omitted.) Evon v. Andrews, supra, 211 Conn. at 505, 559 A.2d 1131.

The plaintiffs acknowledge that any duty owed by the defendant superintendent to the plaintiff child was discretionary in nature. To succeed in their claim of liability, therefore, they must be entitled to recover within one of the exceptions to a municipal employee's qualified immunity for discretionary acts. Our cases recognize three such exceptions: "first, where 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 ... second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ... and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Citations omitted.) Id.

The only exception to the qualified immunity of a municipal employee for discretionary acts that is of relevance to the present case is the exception permitting a tort action in circumstances of perceptible imminent harm to an identifiable person. ⁴ We have construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. See Sestito v. Groton, 178 Conn. 520, 527-28, 423 A.2d 165 (1979). The plaintiffs contend that the plaintiff school child was a member of a foreseeable class of victims to whom the superintendent owed a special duty of care and, thus, the defense of governmental immunity should not lie. We agree.

The existence of a duty of care, an essential element of negligence, is a matter of law for the court to decide. Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). "A duty to act with reasonable care to prevent harm to a plaintiff which, if violated, may give rise to tort liability is based on a 'special relationship' between the plaintiff and the defendant. See W. Prosser, Torts § 56 (4th ed. 1971)." Irwin v. Ware, 392 Mass. 745, 756, 467 N.E.2d 1292 (1984); Neal v. Shiels, Inc., 166 Conn. 3, 12, 347 A.2d 102 (1974). " 'A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.' Coburn v. Lenox Homes, Inc., [supra, 186 Conn. at 375, 441 A.2d 620]." Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983).

"The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised...." (Citations omitted; internal quotation marks omitted.) Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981). "Foreseeability" in this context is a flexible concept, and may be supported by reasonable reliance, impeding others who might seek to render aid, statutory duties, property ownership or other factors. See Irwin v. Ware, supra, 392 Mass. at 756, 467 N.E.2d 1292. Moreover, just as the doctrine of governmental immunity and its exceptions are the product of the policy considerations that aid the law in determining whether the interests of a particular type are entitled to protection; Shore v. Stonington, supra, 187 Conn. at 152-53, 444 A.2d 1379; so may evolving expectations of a maturing society change the harm that may reasonably be considered foreseeable. Irwin v. Ware, supra, 392 Mass. at 756-57, 467 N.E.2d 1292.

In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim. E.g., Evon v. Andrews, supra, 211 Conn. at 507-508, 559 A.2d 1131. Other courts,...