Lotto v. Hamden Board of Education, No. CV 05 4010436 (CT 2/21/2006), CV 05 4010436

Decision Date21 February 2006
Docket NumberNo. CV 05 4010436,CV 05 4010436
CourtConnecticut Supreme Court
PartiesLisa Lotto et al. as Parents and Next Friends of Their Minor Daughter, Alyssa Lotto v. Hamden Board of Education Opinion No.: 92340
MEMORANDUM OF DECISION RE MOTION TO DISMISS

JONATHAN E. SILBERT, JUDGE.

The plaintiffs, Al and Lisa Lotto, as parents and next friends of their minor daughter Alyssa Lotto, filed a five-count complaint against the defendant, the Hamden Board of Education, arising out of the defendant's expulsion of Alyssa after she brought alcohol onto school property. The amended complaint alleges that the defendant's actions were: (1) a violation of General Statutes §10-233d(d); (2) a violation of the constitution of Connecticut, article eighth, §1;1 (3) a breach of a written contract; (4) an intentional infliction of emotional distress; and (5) a violation of the equal protection clause of the fourteenth amendment of the United States constitution.2 Specifically, counts one and three allege that the defendants entered into a written agreement with the plaintiffs, in which the defendants agreed to provide Alyssa with an alternative educational opportunity consisting of approximately two hours per day of academics and counseling and that it would permit Alyssa to return to school on the first day of the third marking period of the school year if certain stated conditions were met. Pursuant to the written agreement, the plaintiffs agreed to not challenge the expulsion and waived the right to an expulsion hearing. The plaintiffs allege that the defendants failed to provide Alyssa with sufficient amounts of work and gave her "grades in subjects which she was not even taught." Count four alleges that "the defendant knowingly and intentionally encouraged, created and tolerated an atmosphere of chaos, disruptiveness and violence at Alyssa's school" by, inter alia, failing to follow written policies for the expulsion of other students in cases that involved alleged theft, verbal threats of physical violence, and assault.

The complaint was removed to federal court by the defendant pursuant to 28 U.S.C. §1446(b). Thereafter, on August 10, 2005, the defendant filed a motion to dismiss pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure. In a decision dated November 29, 2005, the court, Arterton, J., granted the motion as to the fifth count but declined to exercise supplemental jurisdiction pursuant to 28 U.S.C. §1367(c) over the remaining state law claims. The case was thereupon remanded to this court on December 21, 2005.

Pending before this court is the defendant's motion to dismiss the remaining three state law claims.3 Although still styled as a motion to dismiss, the proper name for it while the case was still in federal court, it is in fact a motion to strike, as it seeks to have the remaining counts stricken for failure to state claims upon which relief may be granted as a matter of law.

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005).

The defendant first argues that the court should strike counts one, three and four because it is entitled to qualified immunity. "Municipal employees, unlike municipalities, were not immune from liability at common law for their tortious acts, but faced the same personal tort liability as private individuals . . . Over the years, however, [t]he doctrine of [qualified] immunity has provided some exceptions to the general rule of tort liability for municipal employees. Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Thus, [t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties . . . Accordingly, if the plaintiffs had sued the defendants in their individual capacities, the defendants would not be immune from liability, even in the performance of their governmental duties, because immunity does not apply where the alleged acts involved an intent to injure the plaintiffs.

"If, however, the defendants have been sued in their official capacities, the suit is, in effect, a suit against the municipality and the individual defendants are entitled to the protection of the municipality's immunity. A suit against a [government official] in his or her official capacity however is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the [government] itself . . . As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity, it is not a suit against the official personally, for the real party in interest is the entity." (Citations omitted; internal quotation marks omitted.) Hadden v. Southern New England Telephone Co., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 03 0183016 (August 18, 2004, Alander, J.).

The plaintiffs did not name any agent, employee or officer of the board of education as a defendant, but rather brought this action solely against the board of education itself. Since the plaintiff has not sued the members of the defendant board of education in their individual capacities, qualified immunity is not a consideration. Thus, to the extent that the motion to dismiss counts one, three and four is based upon qualified immunity, it must be denied. This, however, is not the end of the inquiry.

The defendant also argues that counts one, three and four should be stricken because it is entitled to governmental immunity4 pursuant to General Statutes §52-557n.5 "A board of education is an agency of the state in charge of education in a town." Mitchell v. King, 169 Conn. 140, 146, 363 A.2d 68 (1975). "[A]t common law, Connecticut municipalities enjoy governmental immunity in certain circumstances, from liability for their tortious acts." (Emphasis in original; internal quotation marks omitted.) Heigl v. Board of Education, 218 Conn. 1, 4, 587 A.2d 423 (1991). "Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents, negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit, and acts which constitute the creation or participation in the creation of a nuisance . . . [S]ection [52-557n (a)] goes on to exclude liability for acts or omissions of any employee or agent which constitute . . . negligent acts that involve the exercise of judgment or discretion . . . [Section 52-557n(b)] further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property." (Citations omitted; internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 850, 804 A.2d 928, cert denied, 261 Conn. 941, 808 A.2d 1132 (2002).

"[A] municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts." (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998). "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Heigl v. Board of Education, supra, 218 Conn. 5. "Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "It becomes a question of law if the nature of the acts complained of is apparent from the complaint . . . that is, if the complaint leaves no room for reasonable disagreement as to the nature of the acts complained of." (Citations omitted; internal quotation marks omitted.) Bentley v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 97 0403487 (September 4, 2001, Zoarski, J.T.R.).

In Heigl v. Board of Education, supra, 218 Conn. 1, the court held that a board of education, which adopted an open campus policy, was "insulated from tort liability by reason of the doctrine of governmental immunity." Id., 2. The court stated that "[t]he act of promulgating a policy . . . is a discretionary activity . . . The fact that a policy is enacted to guide . . . future decisions indicates that the board was engaged in a legislative, and therefore discretionary, activity . . . Furthermore, the fact that the board chose to select an open campus policy from among various alternatives indicates that the...

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