Haynes v. City of Middletown

• Decision Date: 21 May 2013
• Docket Number: No. 30964.,30964.
• Citation: 142 Conn.App. 720,66 A.3d 899
• Parties: Tracey HAYNES et al. v. CITY OF MIDDLETOWN.
• Court: Connecticut Court of Appeals

142 Conn.App. 720

66 A.3d 899

Tracey HAYNES et al.

v.CITY OF MIDDLETOWN.

No. 30964.

Appellate Court of Connecticut.

Argued Jan. 8, 2013.

Decided May 21, 2013.

Hugh D. Hughes, New Haven, with whom, on the brief, were William F. Gallagher, New Haven, and Mark A. Balaban, Middletown, for the appellants (plaintiffs).

Matthew Dallas Gordon, West Hartford, with whom, on the brief, were Ruth Kurien and Nicholas N. Ouellette, West Hartford, for the appellee (defendant).

LAVINE, ROBINSON and SCHALLER, Js.

LAVINE, J.

More than eight years ago, following a physical education class at Middletown High School (school), a group of boys were engaged in horseplay in the boys locker room. One student pushed the plaintiff Jasmon Vereen into a locker with an exposed jagged and rusted edge that had been in that condition approximately one half of the school year. Vereen suffered a cut on his arm that left a scar. This case is the result.

This appeal returns to this court on remand from our Supreme Court. See Haynes v. Middletown, 306 Conn. 471, 475, 50 A.3d 880 (2012). The plaintiffs, Tracey Haynes, as the parent and next friend of the then minor Vereen, and Vereen individually,¹ appealed from the judgment rendered by the trial court when it set aside the jury verdict and rendered judgment in favor of the defendant, the city of Middletown. On appeal, the plaintiffs claim that the court improperly set aside the verdict because (1) the defendant waived its special defense of governmental immunity by failing to request that the court charge the jury with respect to said special defense and (2) it erred in concluding that there was insufficient evidence of imminent harm. We affirm the judgment of the trial court.

The following facts underlie this personal injury action. See Haynes v. Middletown, 122 Conn.App. 72, 74, 997 A.2d 636 (2010), rev'd, 306 Conn. 471, 50 A.3d 880 (2012). On March 15, 2005, following their physical education class, Vereen and other students were changing their clothes in the boys locker room. Although the school had informed students in writing that horseplay in the locker room was not permitted, Vereen and other students were engaged in horseplay at the time. Another student, Andre Francis, pushed Vereen into a locker with an exposed jagged and rusted edge. Vereen suffered a cut on his arm that left a scar. According to Vereen and Francis, the locker had been in a broken condition since the beginning of the school year.

As a result of Vereen's injury, the plaintiffs commenced an action against the defendant seeking monetary damages. The plaintiffs alleged that Vereen was a student at the school who was in the locker room with other students on March 15, 2005, for a physical education class. They also alleged that there was a broken locker with an exposed jagged edge in the locker room and that the locker had been in that condition long enough for the exposed metal to have become rusty. Moreover, Vereen was injured when he was pushed into the broken locker during school hours. The complaint also alleged that the defendant and its agents, servants or employees were negligent, and that the action was being brought pursuant to General Statutes § 52–557n.² The defendant denied the plaintiffs' allegations of negligence and asserted the special defenses of governmental immunity and comparative negligence. The plaintiffs replied to the defendant's special defenses with a general denial.

The case was tried to a jury in November, 2008. At the conclusion of the plaintiffs' case, the defendant filed a written motion for a directed verdict “on the ground that the plaintiffs had presented no evidence to show that the alleged actions of the defendant were governed by any policies or procedures, as alleged in their complaint. The defendant argued that the lack of any such evidence demonstrated that the alleged negligent actions were discretionary and not ministerial, and that the doctrine of discretionary governmental immunity therefore would bar the plaintiffs' recovery.” Counsel for the plaintiffs acknowledged that the alleged negligent acts were discretionary in nature but that the identifiable person, imminent harm exception to governmental immunity applied because the condition of the locker presented an imminent harm to an identifiable class of victims, i.e., students in the locker room.³ The court reserved judgment on the defendant's motion for a directed verdict, and the defendant presented its case.

None of the parties filed a request to charge with respect to governmental immunity or any exception thereto, and the court did not instruct the jury on those legal principles. On November 25, 2008, the jury returned a verdict in favor of Vereen, although it found him to have been 33 percent responsible for his injury. On December 2, 2008, the defendant filed a motion to set aside the verdict and to render judgment in its favor. ⁴ After the parties had briefed the issue and presented the court with oral arguments, the court issued a memorandum of decision on March 31, 2009; see Practice Book § 16–38; in which the court granted the defendant's motion to set aside the verdict and rendered judgment in its favor.

The plaintiffs appealed to this court claiming that “the court improperly set aside the verdict on the ground of governmental immunity because (1) the defendant waived that defense by failing to request a charge on municipal immunity and (2) there was sufficient evidence of imminent harm for the plaintiffs' claim to fall within the identifiable person, imminent harm exception to the immunity generally afforded municipalities for the negligent performance of discretionary acts.” Haynes v. Middletown, supra, 122 Conn.App. at 73, 997 A.2d 636. A panel of this court concluded that the trial court properly set aside the jury verdict because the verdict was contrary to the law because “the plaintiffs never made the applicability of the identifiable victim, imminent harm exception to discretionary act immunity a legal issue in the case because they failed to plead it in their complaint or in their reply to the defendant's special defense of governmental immunity.” ⁵Id., at 82, 997 A.2d 636. The panel therefore affirmed the court's judgment in the defendant's favor. Id.

Thereafter, the plaintiffs filed a petition for certification to appeal in our Supreme Court. The petition was granted.⁶ See Haynes v. Middletown, 298 Conn. 907, 3 A.3d 70 (2010). After hearing the plaintiffs' appeal, our Supreme Court concluded that this court erred in affirming the judgment of the trial court on the basis of a claim not raised by the parties as the “issue of the plaintiffs' failure to plead the identifiable victim, imminent harm exception to discretionary act immunity in their complaint or in their reply to the defendant's special defense of governmental immunity had not been raised or briefed prior to oral argument before the Appellate Court....” Haynes v. Middletown, supra, 306 Conn. at 473–74, 50 A.3d 880. The Supreme Court reversed the judgment of this court and remanded the case with direction for consideration of the pleading “issue only after affording the parties the opportunity to brief and argue that issue.” Id., at 475, 50 A.3d 880.

On remand, we ordered the parties to file supplemental briefs on the effect, if any, of the plaintiffs' failure to plead the identifiable victim, imminent harm exception to governmental immunity for discretionary acts in reply to the defendant's special defense of governmental immunity. Following our review of the parties' original and supplemental briefs and after oral argument, we have determined that the plaintiffs' appeal can be resolved on the basis of their original appellate claims and that supplemental briefing was not necessary. We conclude that the defendant did not waive its special defense of governmental immunity by failing to request a jury instruction and that the court properly determined that the plaintiffs had not produced sufficient evidence of imminent harm to prevail on the exception to governmental immunity for discretionary acts.

We now summarize the relevant portions of the court's thorough and detailed memorandum of decision on the defendant's motion to set aside the verdict and motion for directed verdict. The court first recited the relevant factual allegations of the plaintiffs' complaint, particularly the allegations regarding the condition of the subject locker. The plaintiffs alleged that the locker had been broken prior to this incident and specifically that “the defendant was negligent in that it knew or should have been aware of the condition of the broken, rusty, jagged locker before the incident; it caused or allowed and permitted the locker to remain in disrepair in an area where students were required to pass; it caused or allowed and permitted the broken, jagged, rusty locker to be exposed to persons required to be in said locker room,” among other allegations of negligence. The court found that only the defendant's governmental immunity defense was relevant to its motion to set aside the verdict.

The court found that the defendant moved for a directed verdict after the plaintiffs rested their case because the plaintiffs had not provided evidence of any rule, policy, or directive requiring the defendant to undertake any specific safety precautions in connection with the inspection and repair of the lockers, and if there were a general policy concerning locker maintenance, repairing it was within the discretion of the defendant's employees. The defendant argued that the plaintiffs' action was barred by governmental immunity. The court agreed that repair of the lockers in the absence of evidence to the contrary was within the defendant's discretion.⁷ Importantly, the court found that Vereen and Francis had testified that the subject locker had been broken since the beginning of the school year and that Vereen had been in the locker room on...