Gonzalez v. University System of New Hampshire, No. 451217 (CT 1/28/2005)

• Decision Date: 28 January 2005
• Docket Number: No. 451217,451217
• Court: Connecticut Supreme Court
• Parties: Emyne Gonzalez v. University System of New Hampshire et al. Opinion No.: 87462

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Unpublished Opinion

Emyne Gonzalez v. University System of New Hampshire et al.

Opinion No.: 87462

No. 451217

Superior Court of Connecticut

Judicial District of New Haven at New Haven

January 28, 2005

MEMORANDUM OF DECISION

LEVIN, JUDGE.

On November 16, 1999, the plaintiff, Emyne Gonzalez, was a sophomore at Keene State College (KSC), an institution under the administrative control of the University System of New Hampshire (USNH). The plaintiff was a member of the cheerleading club and, together with a number of her fellow cheerleaders, attempted to perform a "pyramid" during practice, under the direction of their coach, Karen Wilson (Wilson). While atop the pyramid, the plaintiff fell, sustaining serious injuries. As a result of the fall she is a quadriplegic.

The plaintiff is a Connecticut resident. She has brought this action in Connecticut Superior Court against the defendants, KSC and USNH. No question of personal jurisdiction over the defendants is raised.

The plaintiff's amended complaint is in three counts: negligence, breach of fiduciary duty and recklessness. Each count, however, repeats the same allegations of tortious acts and omissions against both defendants: proper rules governing the coaching of safe cheerleading or the hiring of cheerleading coaches were not promulgated or followed; the defendants hired an inadequately trained teacher/coach of cheerleading; cheerleading students were not properly trained; cheerleading students were allowed to participate in cheerleading activities without proper safety provisions; and the agents, servants or employees of the defendants were otherwise negligent or reckless. The plaintiff seeks damages for permanent injuries, loss of earning capacity, medical expenses and loss of the ability to enjoy life's activities. The plaintiff also seeks punitive damages.

The defendants have denied that they committed any tortious acts or omissions that caused the plaintiff's injuries and losses. They also have interposed several special defenses, including that the plaintiff's injuries and losses were caused by her own failure to use reasonable care; that her claims are barred by a written release of liability she signed; that the defendants are entitled to sovereign and governmental immunity; that the plaintiff's claims arc barred by the doctrine of assumption of risk; that the defendant's liability is limited by N.H. Rev. Stat. §541-B:14; that punitive damages are prohibited by N.H. Rev. Stat. §541-B:14; and that the plaintiff's claims of recklessness are barred by the statute of limitations.

The defendants have moved for summary judgment on the grounds that the facts do not support the plaintiff's claim of recklessness and that her claims are barred by a release she signed, by the statute of limitations and by the doctrines of assumption of the risk and sovereign immunity.

The parties agree that the substantive law of New Hampshire governs this case because the plaintiff's injury and the allegedly tortious activity occurred in New Hampshire, where the plaintiff was a full-time student, and because the defendants are political and corporate bodies of the state of New Hampshire. N.H. Rev. Stat. §§187-A:1; 187-A:11. See generally Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 372, 641 A.2d 783 (1994); O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986); 1 Restatement (Second), Conflict of Laws §§6, 145 (1971). Connecticut law, however, governs matters of procedure. Broderick v. McGuire, 119 Conn. 83, 101-02, 174 A. 314 (1934).

Connecticut law, therefore, governs summary judgment procedure before this court. "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . [T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to astrict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book §380 [now §17-45] . . ." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).

The affidavits and other documentary evidence submitted by the parties establish the following facts. The plaintiff was a student at KSC from August 1998 until the time of her injury on November 16, 1999. During this tine, KSC had, among its extracurricular activities, a cheerleading club. Cheerleading was not a sport or athletic event but, rather, a self-governing special interest club with twelve members. Membership was voluntary; there were no tryouts and any student who volunteered could be a member of the club. This, however, did not guarantee that a person could participate in cheerleading stunts.

In its 1999-2000 Student Programs Handbook and Calendar, Programming Guidelines and Policies for Clubs and Organizations, KSC recognized that activities such as clubs are "vital to the mission of the college and the personal development of its students." The cheerleading club was officially recognized by KSC, entitling it to use space on campus and to apply for monies from the Student Activity Fund. Student organizations seeking such monies would meet with Paul Striffolino, the Director of the Student Center. Striffolino also assisted in scheduling space on campus for such groups. An activity for which a club was permitted to use college space or received money was deemed an officially sponsored event. Requests for money were routinely granted by the director of the student center unless the request was for liquor or something illegal. If the director learned that a coach or advisor was doing something inappropriate, he would consult with the vice president of student affairs. The vice president of student affairs had the authority to dismiss an advisor or coach. The director had asked an advisor of another student organization to step down because the advisor had engaged in inappropriate activity on college property.

Student organizations such as the cheerleading club were required by KSC to have an advisor who was a full-time member of the KSC faculty or staff. The advisor was required to play a role in three major areas of the organization: group growth, group maintenance and program content. The advisor's responsibility for group growth included "advisory activities that improve the operation and effectiveness of the group and help it progress toward its goal." With respect to group maintenance, the advisor was expected to "maintain the existence of the student organization and to help keep it out of unnecessary difficulty by alerting the group to college policies and procedures . . . arbitrating group disputes, providing advice when called upon, providing history and tradition of past groups when advisable, advise of financial matters, and helping groups be aware of the importance of good public relations for the organization and the institution." With respect to program content, an advisor was expected to assist "the organization to complement the formal curricular offerings of the College by, inter alia, `supplying expert knowledge and insight of experience . . .'" According to the "1999-2000 Student Programs Handbook and Calendar, Programming Guidelines and Policies for Clubs and Organizations," "the Advisor should attempt to perform growth, maintenance, and content functions as seem appropriate to specific situations . . . The Advisor's objective should be to make membership in the organization an educationally meaningful experience. The Student Organization Advisor should go beyond the role of the passive bystander and be prepared to provide active ongoing academic and social leadership to the student group." It was through advisors that KSC monitored club activities.

The cheerleading club's advisor was not required to have expertise in cheerleading. Although the club had an advisor, Deborah Butler, only once did she speak with club members. She never attended a club meeting.

Although the club was not required to have a coach, it retained a volunteer coach. If a member of the club had a complaint about a coach's inappropriate activity, the club's advisor would have met with the club. If the complaint was verified, the advisor would have "gone up the chain of command" and advised the club to do the same.

Prior to attending KSC, the plaintiff had never been a cheerleader, though she very much wanted to be one. She began attending practices of the KSC cheerleading club during her freshman year, the 1998-1999 school year. The person who coached the club during the first half of the year, a woman named June, did not allow the plaintiff to participate in "pyramids" or performances. In cheerleading pyramids, the following positions exist; the bases who stand on the ground; the fliers who climb up on top of the bases; the spotters, who stand behind the pyramid and help the fliers climb, catch...