Lewis v. Newton Board of Education

• Decision Date: 07 May 2018
• Docket Number: CV156075650S
• Court: Connecticut Superior Court
• Parties: Scarlett Lewis, Administratrix of the Estate of Jesse Lewis et al. v. Newton Board of Education et al.

Scarlett Lewis, Administratrix of the Estate of Jesse Lewis et al. v. Newton Board of Education et al.

No. CV156075650S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

May 7, 2018

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#162)

Wilson, J.

STATEMENT OF CASE AND PROCEDURAL HISTORY

This action arises out of the tragic deaths of the plaintiffs’ decedents, Jesse Lewis and Noah Pozner. The plaintiffs Scarlett Lewis, administratix of the estate of Jesse Lewis and Leonard Pozner, administrator of the estate of Noah Pozner, bring this wrongful death action against the defendants, the Newtown Board of Education (board) and the town of Newtown (town). On June 30, 2017, the defendants moved for summary judgment on the ground that the plaintiffs’ claims fail as a matter of law. Specifically, the defendants argue that: (1) there is no genuine issue of material fact regarding whether they are negligent; (2) they are entitled to governmental immunity; (3) an intervening criminal act was the proximate cause of the decedents’ deaths; and (4) the plaintiffs failed to produce expert testimony necessary to support their claims.^[1] On November 11, 2017, the plaintiffs countered that the defendants failed to establish that there are no genuine issues of material fact and, thus, are not entitled to judgment as a matter of law. The parties submitted numerous exhibits in support of and in opposition to the motion for summary judgment,^[2] and the defendants filed a reply to the plaintiffs’ objection on November 15, 2017. Oral argument on the motion was heard by this court on January 8, 2018.^[3]

FACTS

The tragic events of December 14, 2012, are undisputed^[4] by the parties, having been the subject of intense media scrutiny and a long and thorough investigation. On December 14, 2012, the doors to Sandy Hook Elementary School (school) were locked at 9:30 a.m., as they were every morning. (Revised Third Compl., Ct. 1, ¶15; Defs.’ Mot. Summ. J., Ex. A, ¶32; Pls.’ Mem. Opp’n, Ex. M pp. 5, 9.) On that day, a 9:30 a.m., planning and placement team (PPT) meeting took place in room nine, attended by Principal Dawn Hochsprung, School Psychologist Mary Scherlach, a parent, and other staff. (Revised Third Compl., Ct. 1, ¶¶20-21; Defs.’ Mem. Summ. J., Ex. C ¶¶16, 18; Defs.’ Mem. Summ. J., Ex. D ¶¶17; Pls.’ Mem. Opp’n, Ex. M p. 9). At approximately 9:35 a.m., Adam Lanza (Lanza) shot his way into the school through a plate glass window located next to the school doors. (Revised Third Compl., Ct. 1, ¶18; Defs.’ Mot. Summ. J., Ex F ¶¶5-7; Pls.’ Mem. Opp’n, Ex. M pp. 9, 11).

Hochsprung and Scherlach were shot and killed upon leaving room nine to investigate, and then Natalie Hammond was shot and injured before crawling back into room nine. (Revised Third Compl., Ct. 1, ¶20-21; Defs.’ Mot. Summ. J., Ex. D ¶¶22-24; Pls.’ Mem. Opp’n, Ex. M p. 9.) Lanza then entered and exited the main office, without shooting anyone in the office, and proceeded to classrooms eight and ten. (Revised Third Compl., Ct. 1, ¶24; Pls.’ Mem. Opp’n, Ex. M p. 2.) The order in which he entered these classrooms is not known, but while in the classrooms, he shot and killed four adults and twenty first-grade students with a rifle. (Revised Third Compl., Ct. 1, ¶28; Pls.’ Mem. Opp’n, Ex. M pp. 2, 5, 10.) The plaintiffs’ decedents were two of the students killed. Lanza then took his own life at approximately 9:40 a.m. (Revised Third Compl., Ct. 1, ¶28; Defs.’ Mot. Summ. J., Ex. F ¶14; Pls.’ Mem. Opp’n, Ex. M pp. 10-12.)

In their revised third complaint, filed on September 1, 2016, the plaintiffs allege that the defendants had a ministerial duty to create, enforce, and abide by a collection of rules and regulations regarding the management of the school and to ensure student safety pursuant to General Statutes § § 10-220, 10-220f, and 10-221. The plaintiffs allege that the defendants were negligent because they (1) failed to provide the school with doors that could be locked from the inside; (2) failed to train and supervise staff in the proper way to implement the lockdown and evacuation procedures; (3) failed to provide certain teachers with keys to the classrooms or training concerning the lockdown procedures; (4) failed to provide a security guard or other type of law enforcement personnel to assist in the implementation of the policies and procedures; (5) failed to remove a non-safety glass window next to the locked doors; and (6) failed to follow their own guidelines regarding school safety by failing to provide adequate equipment and training to faculty and staff in accordance with § § 10-220, 10-220f, and 10-221. The plaintiffs allege that the safety protocols instituted by the defendants were ministerial, but that the defendants failed to provide the faculty and staff of the school with the necessary information, tools, and training to properly implement them. The plaintiffs further allege that the faculty and staff were, therefore, unable to implement the required safety protocols on December 14, 2012, even though harm was imminent and apparent, which resulted in the deaths of the plaintiffs’ decedents. The plaintiffs, therefore, seek to hold the defendants liable for the deaths of their decedents.

STANDARD OF REVIEW

" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " Once the moving party has met its burden ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).

" 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 ... 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 § [17-45]." (Internal quotation marks omitted.) Id.

DISCUSSION

I GOVERNMENTAL IMMUNITY

The defendants move for summary judgment as to all counts of the plaintiffs’ revised third complaint on the ground that there are no genuine issues of material fact that they are entitled to governmental immunity for their discretionary acts and that there are no applicable exceptions to this immunity pursuant to General Statutes § 52-557n(a)(2)(B). The court notes that, apart from a couple of passing references to § 10-220f, once in a rhetorical question, the plaintiffs do not discuss nor counter in their objection that the three statutes they alleged in their revised third complaint impose ministerial duties on the defendants. In fact, the plaintiffs make no argument in their objection to the defendants’ motion for summary judgment that the defendants had a ministerial duty to train and supervise their staff, hire a security guard, or put in specific or different windows and doors. To the contrary, the plaintiffs’ entire objection instead concerns the argument that safety protocols, created by the defendants, imposed a ministerial duty on the faculty and staff in the school that required that they commence a lockdown and implement related procedures, which is an entirely new theory of negligence than that being alleged in the operative complaint for the present motion, the plaintiffs’ revised third complaint.

" The pleadings determine which facts are relevant and frame the issues for summary judgment proceedings or for trial The principle that a plaintiff may rely only [on] what he has alleged is basic ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations [in] his complaint." (Citations omitted; internal quotation marks omitted.) White v. Mazda Motor of America, Inc., 313 Conn. 610, 621, 99 A.3d 1079 (2014). In the present case, the plaintiffs’ theory of negligence articulated in their revised third complaint, is premised on allegations regarding acts and omissions by the board and the town before December 14, 2012, rather than acts and omissions of the faculty and staff in the school during the shooting on December 14, 2012. Although the plaintiffs allege that the safety policies and procedures were...