Durrant v. Bd. of Educ. of City of Hartford

• Citation: 931 A.2d 859,284 Conn. 91
• Decision Date: 02 October 2007
• Docket Number: No. 17733.,17733.
• Court: Supreme Court of Connecticut
• Parties: Sharon DURRANT v. BOARD OF EDUCATION OF the CITY OF HARTFORD et al.

931 A.2d 859

284 Conn. 91

Sharon DURRANT v. BOARD OF EDUCATION OF the CITY OF HARTFORD et al.

No. 17733.

Supreme Court of Connecticut.

Argued May 15, 2007.

Decided October 2, 2007.

Kenneth J. Bartschi, with whom were Wesley W. Horton, Hartford, and, on the brief, Jeffrey G. Schwartz, for the appellants (defendants).

Paul N. Shapera, Hartford, for the appellee (plaintiff).

Kelly D. Balser, filed a brief for the Connecticut Association of Boards of Education as amicus curiae.

Marvin P. Bellis, filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

ROGERS, C.J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.^*

KATZ, J.

The plaintiff, Sharon Durrant, appealed from the judgment of the trial court rendered following the granting of the motion for summary judgment filed by the defendants, the board of education (board) of the city of Hartford and certain city of Hartford employees,¹ which was based on governmental immunity under General Statutes § 52-557n (a)(2)(B) and Connecticut common law.² The plaintiff claimed that the defendants' failure to remove a puddle of water on an outside staircase of a public school attended by her child was an act that had subjected her, as an identifiable member of a foreseeable class of persons, to imminent harm, thereby abrogating the defendants' claim of governmental immunity. In a divided opinion, the Appellate Court reversed the judgment of the trial court and remanded the case for further proceedings, concluding that the doctrine of governmental immunity did not apply to shield the defendants from responsibility for the alleged injuries to the plaintiff, which she had sustained on public school premises when picking up her six year old child from an after school program conducted under the auspices of the board pursuant to General Statutes § 17b-737.³ Durrant v. Board of Education, 96 Conn.App 456, 900 A.2d 608 (2006). The Appellate Court majority determined that, due to the allegedly improper maintenance of the school premises, the plaintiff was within a cognizable and narrowly defined class of foreseeable victims within the precepts of Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994), and, therefore, overcame the barrier of governmental immunity of a municipality for discretionary acts.⁴ Durrant v. Board of Education, supra, at 472, 900 A.2d 608. Thereafter, the defendants petitioned for certification to appeal to this court. We granted their petition, limited to the following question: "Did the Appellate Court properly conclude that the plaintiff was a member of an identifiable class of persons subject to imminent harm?" Durrant v. Board of Education, 280 Conn. 915, 908 A.2d 536 (2006). We answer that question in the negative and accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following undisputed facts and procedural history pertinent to our discussion of the issue on appeal. "In her complaint and subsequent affidavit in response to the motion for summary judgment, the plaintiff alleged that on September 14, 2001, at approximately 4 p.m., she arrived at West Middle School [in Hartford (school)] to pick up her six year old son from an after school day care and homework study program conducted by the Boys and Girls Club and the school. As she exited the school, the plaintiff slipped and fell due to a puddle of water that had accumulated on the backdoor stairs, sustaining several injuries. The plaintiff claims that the defendants failed to inspect the stairs reasonably, failed to promulgate policies and procedures that required inspection and removal of standing water and failed to warn the plaintiff and others adequately of the dangerous condition on the stairs.

"The defendants denied the allegations of the complaint and raised the special defenses of contributory negligence and the doctrine of governmental immunity, pursuant to § 52-557n and the common law. The plaintiff denied the allegations in the defendants' answer and the assertion that § 52-557n and the common law barred her claims. The defendants filed a motion for summary judgment, pursuant to Practice Book § 17-49 et seq., on the ground that governmental immunity barred the plaintiff's recovery on her complaint. The plaintiff argued that (1) the doctrine of governmental immunity is inapplicable because whether removal of water from a staircase is a ministerial or discretionary act is a question of fact that should be left for the jury's determination and (2) even if removal of water from the staircase is a discretionary act, the plaintiff's cause of action falls within the `identifiable person-imminent harm' exception to governmental immunity.

"The court granted the defendants' motion for summary judgment, concluding in its memorandum of decision that it was apparent from the complaint that the omissions alleged in the plaintiff's complaint were discretionary acts, thereby permitting the court to consider the motion for summary judgment pursuant to Segreto v. Bristol, 71 Conn.App. 844, 855, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).⁵ The court concluded that the plaintiff's claim that the `identifiable person-imminent harm' exception to the governmental immunity doctrine should govern did not apply.⁶

"Addressing the plaintiff's claim that her presence at the school was a necessity and, therefore, that she was an identifiable person or a member of a foreseeable class of victims subject to imminent harm, the court found that the plaintiff failed to plead any facts indicating that this was the case. Citing Practice Book § 10-1, the court concluded that the plaintiff was not entitled to litigate the factual issue of whether her presence was a necessity because she failed to plead any such allegation properly. The court, assuming arguendo that the plaintiff was entitled to litigate the factual issue regarding her presence, concluded, in the alternative, that she did not fall within the exception, as a matter of law. The court found that both the plaintiff and her son were voluntarily present at the school. On the basis of the fact that the plaintiff's attendance was not statutorily compelled, the court concluded that the plaintiff could not fall within the identifiable person-imminent harm exception to governmental immunity as defined in existing Connecticut appellate decisions." Durrant v. Board of Education, supra, 96 Conn.App. at 458-61, 900 A.2d 608.

In deciding that the trial court improperly had concluded that the identifiable person-imminent harm exception to municipal employees' immunity did not apply to the present case, the Appellate Court majority predicated its decision on several determinations. First, the court determined that the puddle in the stairwell satisfied the imminent harm element of the exception because the allegedly dangerous condition was limited in duration and location. Id., at 468, 900 A.2d 608. Second, turning to the identifiable person element, the court reasoned that, had the plaintiff's child been injured in the fall, he would have been allowed to maintain an action against a municipality "because, although not legally required to be on the premises after the school day had concluded, the child was legally present on the premises for the after school program by invitation of the defendants. . . . General Statutes § 17b-737. [Accordingly] . . . the six year old student would be in an identifiable class of foreseeable victims had he been the one who was allegedly injured." Durrant v. Board of Education, supra, 96 Conn.App. at 468-69, 900 A.2d 608. Building on that reasoning the Appellate Court concluded that, because the plaintiff "was there to escort her six year old child out of the school building safely" in the exercise of her common-law duty to protect her child, her "presence at the school to ensure the safe departure of her child was reasonably to be anticipated." Id., at 469, 900 A.2d 608. Because our statutes "condone and encourage the use of public school facilities for the very purpose that the plaintiff's child was in attendance at [the school] on the day of the plaintiff's fall"; id., at 470, 900 A.2d 608; the Appellate Court determined that the plaintiff was one of the beneficiaries of the particular duty of the defendants to keep students safe. Id., at 471, 900 A.2d 608. Finally, in view of the fact that "[t]he scope of the `foreseeable class of victims' test is the `product of the policy considerations that aid the law in determining whether the interests of a particular type are entitled to protection'"; id.; the court concluded that the plaintiff fell within the scope of the "foreseeable class of victims" test. Id., at 472, 900 A.2d 608. In his dissent, then Appellate Court Judge Schaller concluded that, because "the adult plaintiff was on school property to pick up her child, who was attending an extracurricular, after school day care and homework study program"; id.; the majority improperly "exceeded the firm standards established by [this court] in Burns v. Board of Education, [supra, 228 Conn. 640, 638 A.2d 1], and more recently in Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005)," when it determined that the plaintiff was an identifiable member of a foreseeable class of persons. Durrant v. Board of Education, supra, at 472-73, 900 A.2d 608 (Schaller, J., dissenting). This certified appeal followed.

Mindful of the well settled standard regarding the scope of our review of a trial court's decision to render summary judgment,⁷ we turn to the narrow issue in dispute in this case. The plaintiff concedes that the defendants' conduct was discretionary, and therefore, she can prevail only if she falls within one of the delineated exceptions to governmental immunity. See footnote 4 of this opinion. The only relevant exception is that the circumstances would "make it apparent to the public officer that his or her...