Osborn v. City of Waterbury

• Decision Date: 06 January 2020
• Docket Number: AC 39574
• Citation: 232 A.3d 134,197 Conn.App. 476
• Court: Connecticut Court of Appeals
• Parties: Tatayana OSBORN et al. v. CITY OF WATERBURY et al.

197 Conn.App. 476

232 A.3d 134

Tatayana OSBORN et al.

v.CITY OF WATERBURY et al.

AC 39574

Appellate Court of Connecticut.

Submitted on briefs January 6, 2020

Officially released May 26, 2020

Daniel J. Foster, corporation counsel, filed a brief for the appellants (named defendant et al.).

Richard M. Franchi, New Haven, filed a brief for the appellees (plaintiffs).

Lavine, Prescott and Harper, Js.

LAVINE, J.

This negligence action against the defendants, the city of Waterbury (city) and the Waterbury Board of Education (board),¹ concerns the injuries that the minor plaintiff, Tatayana Osborn (child),² sustained during a lunchtime recess at her elementary school. This appeal returns to us on remand from our Supreme Court following its reversal of this panel's prior decision. See Osborn v. Waterbury , 333 Conn. 816, 834, 220 A.3d 1 (2019) (holding that expert testimony not necessary to determine whether "the defendants adequately supervised the children"). Our Supreme Court remanded the case to us "to consider the defendants’ remaining claims on appeal." Id. Those claims are that "the trial court improperly (1) rejected [the defendants’] special defense of governmental immunity for discretionary acts, (2) concluded that the plaintiffs’ injuries were caused when an inadequate number of adults were assigned to supervise up to 400 students when there was evidence that there were no more than 50 students on the playground ... and [ (3) ] awarded damages intended to encourage continued therapy and occupational training for the child in the absence of evidence that she would need such services in the future." (Internal quotation marks omitted.) Id., at 821–22, 220 A.3d 1. We agree with the defendants’ second claim and, therefore, reverse the judgment of the trial court and remand the matter for a new trial.³

The following facts and procedural history, as set forth by our Supreme Court, are relevant to our resolution of the defendants’ remaining claim. "On April 25, 2012, the child was an elementary school student when she was assaulted by other students while they were on the playground during the lunchtime recess. As a result of the assault, the child sustained a cut to her face that required sutures ... and [that] resulted in scarring. The plaintiffs commenced the present action against the city [and] the board, [among others]. ... In their complaint, the plaintiffs alleged, inter alia, that the plaintiffs’ injuries and damages were caused by the negligence and carelessness of the defendant[s] in that [they] ... failed to adequately supervise the children both in and out of the classroom, including the [child].

"The parties tried the case to the court. Following the presentation of evidence, the court issued a memorandum of decision in which it found that the child was a fifth grade student at Sprague Elementary School in Waterbury when she was assaulted by two or more students on the playground. The playground was surrounded by brick walls and fencing, and, following lunch, students occupied the area for play and exercise. More specifically, the child was surrounded by a circle of students who physically assaulted her and pushed her into a stone wall, causing injuries to her nose

and cheek with resulting facial scarring. The child experienced posttraumatic headaches for a sustained period of time, but the most serious effect of this schoolyard assault was its lingering effect on the child's emerging personality and self-image.

"The court also found that Danielle Avalos, a school paraprofessional, was assigned to monitor the students on the playground during recess. She was not provided with written documents that listed her duties during the lunchtime recess.

Her two day professional development training occurred prior to the first day of school and focused on the forms of student bullying and the need to distinguish between bullying and students merely picking on other students or otherwise being unkind to them. ...

"The trial court found that [t]here was also no evidence to suggest that only portions of the student body were released for [lunch] at a given time; it is more likely the student body ate together in the [lunch] room and then went outside for recreation—in large numbers. The trial court further found that, [a]t the time of the incident, classroom teachers were on [lunch] recess (and there was no evidence to establish that staff lunch times were staggered). The court concludes that 1 student intern and 3 or 4 staff members were not sufficient to exercise control over as many as 400 students [on the playground].

"With respect to the incident during which the child was injured, the court found that Avalos saw a student repeatedly punch the child in the face and push her into a wall. A precis prepared by the nursing division of the Waterbury Health Department referenced, a large, deep cut on the [child's] left cheek and a cut of lesser depth on the bridge of her nose. ... The court rendered judgment in favor of the plaintiffs.

"After trial, the defendants sought an articulation from the trial court pursuant to Practice Book §§ 61-10 and 66-5. Specifically, the defendants requested that the trial court articulate (1) whether the court found either or both of the individual defendants who remain in the case to be liable for the plaintiffs’ injuries and losses, and, if so, on what basis, and (2) whether the court found that the plaintiffs’ injuries and losses were caused by the fact, as found by the court, that the number of adults present on the playground where the injuries took place was insufficient to exercise proper control over the number of students present.

"The trial court responded to the defendants’ request for articulation as follows:

(1) This court did not find any remaining individual (specifically ... Avalos or Donna Perreault) was liable for the plaintiffs’ injuries or losses .... (2) This court found [that] the injuries and/or losses were as a result of the [city's] failure to exercise proper control over the number of students present. (3) The court (in [an] August 12, 2016 ruling) found [that] the plaintiffs’ injuries were caused by insufficient staffing of personnel to exercise proper control over the number of students on the playground at the time (perhaps as many as 400 students) .... (4) The court concluded [that] the injuries to the plaintiffs were proximately caused by an insufficient number of staff personnel—to monitor the actions of students on the playground on the date of injury. ...

"The defendants appealed from the judgment of the trial court to the Appellate Court ...." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., at 819–21, 220 A.3d 1. Additional facts will be set forth as necessary.

The defendants claim on appeal that the court improperly found that the plaintiffs’ injuries were caused by the fact that 1 student intern and 3 or 4 staff members were insufficient to exercise proper control over perhaps as many as 400 students. The defendants argue that the factual finding with regard to the number of students on the playground at the time the child was injured was clearly erroneous because there was no evidence that there were "perhaps as many as [400] students" on the playground. The plaintiffs counter that there was evidence of a total of 400 students in the school, and that the evidence varied as to the number of students on the playground at the time the child was injured, all of which the court could have chosen to ignore. On the basis of our careful review of the record, we are left with a firm conviction that the trial court made a mistake in finding that there were "perhaps as many as 400 students" on the playground at the time the child was injured. That conclusion, in our view, is clearly erroneous and unsupported by the facts.

We begin with the standard that governs our review of the defendants’ claim. "A court's determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made ." (Emphasis added; internal quotation marks omitted.) Considine v. Waterbury , 279 Conn. 830, 858, 905 A.2d 70 (2006). "As a reviewing court, [w]e cannot act as a [fact finder] or draw conclusions of facts from the primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found, thereby establishing that the trial court could reasonably conclude as it did. ... Moreover, the fact that there is support in the record for a different conclusion [than the one reached by the court] is irrelevant at this stage in the judicial process. On appeal, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. ... [Instead] [w]e review the totality of the evidence, including reasonable inferences therefrom, to determine whether it could support the trier's decision." (Citation omitted; internal quotation marks omitted.) Benchmark Municipal Tax Services, Ltd. v. Greenwood Manor, LLC , 194 Conn. App. 432, 441, 221 A.3d 501 (2019).

At trial, the following evidence was before the court. Donna Perreault, the principal of the school at the time of the incident, testified that there were "around probably plus or minus 400 [students]" at the school and that there were approximately twenty-five classrooms in kindergarten through fifth grade at the school. Each school day, the students ate lunch in three waves in the "caf-gym-atorium" and staff members were assigned to cover those waves. After students ate and cleared their lunch tables, they were called by table to line up at a side door to go outside for recess. There was a staff member positioned at the side door who walked them outside for recess and another staff member positioned outside waiting for the students. There were...