Lopez v. City of Bridgeport

• Decision Date: 27 June 2016
• Docket Number: CV156051932S
• Court: Connecticut Superior Court
• Parties: Leticia Santana Lopez as Parent & Guardian of A.L. v. City of Bridgeport et al

Leticia Santana Lopez as Parent & Guardian of A.L. v. City of Bridgeport et al

No. CV156051932S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

June 27, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE (NO. 117)

Barbara N. Bellis, J.

I FACTS

The plaintiff, Leticia Lopez, as the parent and guardian of her minor son, Andre filed the nine-count complaint in this action against the city of Bridgeport (the city), the Bridgeport Board of Education (the board), Judith Rutter Ruta Leonard, Ellyn Sitten, Renu Zammarieh, and Marisol Baez^[1] on August 28, 2015. On October 22 2015, the board and the individual defendants filed a request to revise. The plaintiff submitted a revised complaint on November 20, 2015. Subsequently, on December 4, 2015, the plaintiff filed a request for leave to amend the complaint and an amended complaint, to which the defendants did not object. Count one of the amended complaint provides the factual basis for the remaining counts.

In summary, the plaintiff alleges the following. In August of 2013, Andre was a fourteen-year-old special needs student in the special education classroom at Warren Harding High School (Harding) in Bridgeport. The special education class included twenty-five students who were developmentally disabled and with special needs, and who ranged in age from fourteen years old to twenty-one years old. The students were taught and supervised by two teachers, Rutter and Leonard, and four paraprofessionals, who included Sitten, Zammarieh, and Baez.

In teaching and supervising the special education students, the individual defendants had a ministerial duty to comply with the students' Individual Education Plans (IEPs) and Harding policy. Although aware of the responsibilities and duties that these sources imposed on them, on August 30 2013, the individual defendants failed to comply with these requirements. As a result, on his way to lunch with the rest of the special education class, Andre entered the restroom unattended and unsupervised. An older, male special education student followed him into the restroom. For at least eight minutes, while other male special needs students watched, laughed, encouraged, and filmed, this other student sexually and physically assaulted Andre. Andre was left crying and bleeding on the bathroom floor. No one came to his aid.

Although Andre informed two of the individual defendants about the attack, no one notified the plaintiff. Instead, the plaintiff learned of the attack when her older son, another student at Harding, heard that a video of the attack was circulating throughout the school. Subsequently, the plaintiff brought suit alleging negligence against the individual defendants (count one) and the board (count six), negligent infliction of emotional distress against the individual defendants (count two) and the board (count seven), failure to provide a safe school setting in violation of General Statutes § 10-220 (count eight), and derivative claims, including indemnification (count three) and liability pursuant to General Statutes § 52-557n (count nine) against the board.^[2]

On January 15, 2016, the individual defendants and the board (the defendants) filed a motion to strike counts one, two, three, six, seven, eight, and nine, ^[3] accompanied by a memorandum of law. Specifically, the defendants move to strike: (1) counts one, two, six, and seven of the plaintiff's amended complaint, alleging negligence and negligent infliction of emotional distress against the individual defendants and the board, on the ground that the claims are barred by sovereign immunity; (2) count eight of the plaintiff's amended complaint, alleging negligence against the board based on the board's breach of the statutory duty imposed by General Statutes § 10-220 to provide a safe school setting, on the ground that the claim is barred by sovereign immunity or, in the alternative, governmental immunity; and (3) counts three and nine, which invoke liability under General Statutes § § 10-235 and 52-557n, on the ground that the claims are derivative and the underlying claims should be stricken. The plaintiff filed her memorandum of law in opposition to the motion to strike on February 16, 2016, to which the defendants replied on April 27, 2016. The court heard oral argument on May 2, 2016.

II DISCUSSION

" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . ." Practice Book § 10-39(a). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140 438 A.2d 27 (1980).

In considering a motion to strike, " [the court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [Accordingly] all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id. " [I]f a motion to strike attacks an entire count, but any part of the plaintiff's claims therein are legally sufficient, the motion will fail." (Internal quotation marks omitted.) Aurio v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-02-0175465-S (November 26, 2003, Gallagher, J.) (36 Conn.L.Rptr. 39, ).

A Sovereign Immunity

As a preliminary matter, it is noted that, because " [t]he doctrine of sovereign immunity implicates subject matter jurisdiction [it is ordinarily raised via] . . . a motion to dismiss." (Internal quotation marks omitted.) Housatonic R.R. Co. v. Comm'r of Revenue Servs. 301 Conn. 268, 274, 21 A.3d 759 (2011). Nevertheless, " [a]ny party, or the court itself, can raise the issue of subject matter jurisdiction at any time. It matters not how or by whom the question of jurisdiction is raised." Manning v. Feltman, 149 Conn.App. 224, 236, 91 A.3d 466 (2014). " Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). " It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).

" The doctrine of sovereign immunity, which establishes that the state cannot be sued without its consent, is well recognized in Connecticut . . . The protection afforded by this doctrine has been extended to agents of the state acting in its behalf . . . Town boards of education, although they are agents of the state responsible for education in the towns, are also agents of the towns and subject to the laws governing municipalities." (Citations omitted.) Cahill v. Board of Education, 187 Conn. 94, 101, 444 A.2d 907 (1982). " [O]ur jurisprudence has created a dichotomy in which local boards of education are agents of the state for some purposes and agents of the municipality for others." Purzycki v. Fairfield, 244 Conn. 101, 112, 708 A.2d 937 (1998), overruled in part on other grounds by Haynes v. Middletown, 314 Conn. 303, 323, 101 A.3d 249 (2014). " To determine whether the doctrine of sovereign immunity applies to a local school board, [courts] look to whether the action would operate to control or interfere with the activities of the state . . ." (Internal quotation marks omitted.) Purzycki v. Fairfield, supra, 112.

As a general rule, " [a] local board of education acts as an agent of the state when it performs those duties delegated to it by the state . . . A board of education acts as an agent of its respective municipality when it performs those functions originally entrusted by the state to the municipality that the municipality has subsequently delegated to the board of education . . ." (Citations omitted.) Board of Education v. New Haven, 237 Conn. 169, 181, 676 A.2d 375 (1996). For example, " the furnishing of an education for the public is a state function and duty"; Cheshire v. McKenney, 182 Conn. 253, 257, 438 A.2d 88 (1980); while the " [t]he duty to supervise students is performed for the benefit of the municipality." Purzycki v. Fairfield, supra, 244 Conn. 112. Accordingly, actions taken in furtherance of the former duty are protected by sovereign immunity, while actions taken in furtherance of the latter are not.

Sovereign Immunity as to Counts One, Two, Six, and Seven

In counts one, two, six, and seven, the plaintiff alleges negligence and negligent infliction of emotional distress against the defendants. The defendants argue that the alleged actions and omissions stem from their providing special education services pursuant to a delegated state responsibility. Relying on a finite line of Superior Court decisions and their progeny, including related federal court cases, the defendants conclude that they are therefore immune from suit. The plaintiff challenges the significance of the rulings on which the defendants rely and...