Heslin v. Town of South Windsor

• Decision Date: 28 January 2020
• Docket Number: HHDCV196112394S
• Court: Connecticut Superior Court
• Parties: Ryan Heslin PPA Stephen Heslin v. Town of South Windsor et al.

Ryan Heslin PPA Stephen Heslin v. Town of South Windsor et al.

No. HHDCV196112394S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

January 28, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Taylor, Mark H., J.

MEMORANDUM OF DECISION RE MOTION TO STRIKE NO 107

Mark H. Taylor, Judge

The defendants move to strike counts one, two, and three of the plaintiff’s complaint because they allege discretionary acts by municipal defendants and are therefore barred by the doctrine of governmental immunity, to which no exception is applicable pursuant to General Statutes § 52-557n. Subsection (a)(2) of § 52-557n, regarding municipal liability, provides in relevant part: "Except as otherwise provided by law a political subdivision of the state shall not be liable for damages to person or property caused by ... (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." (Emphasis added.)

The plaintiff opposes the motion, asserting that the negligent performance of a ministerial duty is sufficiently alleged in the amended complaint for purposes of a motion to strike. As a matter of law, "municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion ... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319, 907 A.2d 1188 (2006). In the present case, the allegation is that the defendants negligently performed a ministerial duty alone. Therefore, a discretionary act analysis is inapplicable and the court need not evaluate the allegations under the exceptions permitted for, otherwise, discretionary acts such as an identifiable person subject to imminent harm. See id 318-20.

Generally evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive; see Violano v. Fernandez, supra, 280 Conn. 323-24; and "the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder." (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010). Although evidence of a ministerial duty is provided by specific provisions of law and rules, as stated in Violano, the procedural context of the present motion involves allegations subject to a motion to strike and, therefore, evidence of such an alleged duty is not yet required for the court’s evaluation and analysis.

The issue before the court is the adequacy of the pleadings in this case, which allege a violation of a ministerial duty, resulting in harm to the plaintiff who was struck in the eye by a magnet thrown by another eighth grade student in an unsupervised classroom during school hours. In counts one, two and three, leveled against the town of South Windsor, the South Windsor Board of Education, and the plaintiff’s teacher, respectively, it is alleged that the negligent supervision of the plaintiff was in violation of school "policies, procedures, regulations, and/or handbooks ..." See Amended Compl., Count 1, ¶13(f) & (g); Count 2, ¶9(f) & (e); & Count 3, ¶8(e) & (f).

The court notes that in their opposition to the motion to strike the defendants rely primarily upon cases in which summary judgment was denied for failure to adequately identify a ministerial duty. For example, in Rigoli v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5007920-S (February 6, 2012, Hiller, J.) (53 Conn.L.Rptr. 466), the plaintiffs alleged "that the defendant was required to perform certain acts in a prescribed manner and failed to do so. For example, the plaintiffs alleged that, in violation of the faculty handbook, the defendant failed to emphasize, illustrate, repeat, and make sure all students in the class understand the rules of behavior expected in the hallway." (Internal quotation marks omitted.) Id., 467. In evaluating this allegation for purposes of a motion for summary judgment, the court held that "[t]here is an insufficient factual record concerning these and other allegations to make summary judgment appropriate." Id. Similarly, in Lewis v. Newtown, 191 Conn.App. 213, 235, 214 A.3d 405, cert. denied, 333 Conn. 919, 216 A.3d 650 (2019), the Appellate...