Purzycki v. Town of Fairfield

• Decision Date: 25 February 1997
• Docket Number: No. 15166,15166
• Citation: 44 Conn.App. 359,689 A.2d 504
• Court: Connecticut Court of Appeals
• Parties: , 116 Ed. Law Rep. 714 Gary PURZYCKI et al. v. TOWN OF FAIRFIELD et al.

Page 504

689 A.2d 504

44 Conn.App. 359, 116 Ed. Law Rep. 714

Gary PURZYCKI et al. v. TOWN OF FAIRFIELD et al.

No. 15166.

Appellate Court of Connecticut.

Argued Dec. 3, 1996.

Decided Feb. 25, 1997.

Theodore R. Tyma, Southport, for appellants plaintiffs.

Tracey C. Kammerer, with whom were Thomas J. Walsh, Jr., and, on the brief, Matthew M. Hausman, Southport, for appellees defendants.

Before O'CONNELL, HEIMAN and SPEAR, JJ.

SPEAR, Judge.

The plaintiffs ¹ appeal from the judgment notwithstanding the verdict rendered by the trial court after it granted the defendants' ² motion to set aside the verdict. The plaintiffs claim that the trial court improperly determined that they failed to establish the imminent harm aspect of the identifiable person-imminent harm exception to the defendants' qualified governmental immunity. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff Jason Purzycki was an eight year old second grade student at the Sherman School in Fairfield. School rules required that teachers escort students to an all purpose room, which served as a cafeteria during lunchtime. While eating lunch, the students were supervised by two adults. After eating lunch, the students were dismissed on a table by table basis to go to the playground for recess. To get to the playground from the lunch room, the students proceeded down a hallway. The hallway was not monitored, but teachers in the classrooms abutting the hallway were instructed to keep their doors open in order to hear or see any activity in the hallway. This process was in accordance with the policies, rules and regulations promulgated by school officials.

On June 13, 1989, at approximately 12:30 p.m., Jason, along with the rest of his class, was escorted to lunch by a teacher. After being dismissed for recess, Jason proceeded to his locker, where he removed his coat and hat. He then ran down the hallway, and, as he neared the exit door, another student extended his leg and tripped him. Jason fell, head first, through the wire mesh window of the exit door and sustained injuries.

The relevant procedural history is as follows. The plaintiffs filed a personal injury action against the defendants, sounding in negligence and nuisance. ³ The defendants alleged as a special defense that they were shielded from liability pursuant to the doctrine of qualified governmental immunity. After a trial, the jury rendered a verdict in favor of the plaintiffs. In answers to special interrogatories, the jury stated that the defendants were 60 percent negligent, the plaintiff Jason Purzycki was 40 percent negligent and the defendants' negligence subjected Jason to imminent harm. The defendants moved to set aside the jury verdict, asserting that the plaintiffs failed to prove their claim that the imminent harm exception to the qualified governmental immunity doctrine applied to this case. The trial court granted the defendants' motion and rendered judgment notwithstanding the verdict. This appeal followed.

A trial court may set aside a jury verdict if the court finds the verdict to be against the law or the evidence. Caciopoli v. Acampora, 30 Conn.App. 327, 331, 620 A.2d 191 (1993). The trial court's decision to set aside a jury verdict will not be reversed on appeal unless the trial court abused its discretion. Davis v. Druks, 43 Conn.App. 453, 454, 683 A.2d 745 (1996). "While the trial court has broad discretion to set aside verdicts, it should be mindful that [l]itigants have a constitutional right to have factual issues resolved by the jury." (Internal quotation marks omitted.) Caciopoli v. Acampora, supra, at 331, 620 A.2d 191, quoting Berry v. Loiseau, 223 Conn. 786, 807, 614 A.2d 414 (1992); Donahue v. State, 27 Conn.App. 135, 140, 604 A.2d 1331 (1992). "Every reasonable presumption should be indulged in favor of the correctness of the trial court's decision to set aside the verdict because a trial court is in a better position than an appellate court to determine whether a jury's verdict was improperly influenced." Caciopoli v. Acampora, supra, at 330, 620 A.2d 191. " '[T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.' " Id., at 332, 620 A.2d 191.

With this standard of review in mind, we turn now to the law concerning municipal immunity. "The doctrines that determine the tort liability of municipal employees are well established. Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct...." (Citations omitted.) Beach v. Regional School District Number 13, 42 Conn.App. 542, 553, 682 A.2d 118 (1996). Municipal employees now have qualified immunity in the performance of governmental duties, but may be liable if they misperform a ministerial act, as opposed to a discretionary act. Id. Ministerial duties are those that can "be performed in a prescribed manner without the exercise of judgment or discretion...." (Citations omitted; internal quotation marks omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).

The plaintiffs concede that any duty owed was discretionary in nature. For the plaintiffs to succeed on their claim, the case must fit within one of the following exceptions: "first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... second, where a statute specifically provides for a cause of action against a municipality or municipal officer for failure to enforce certain laws ... and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." Id.

The identifiable person-imminent harm exception is the only one relevant to this case. Our courts have recognized that this exception includes not only identifiable individuals, but also includes narrowly defined classes of foreseeable victims. See Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994); Sestito v. Groton, 178 Conn. 520, 527-28, 423 A.2d 165 (1979). The defendants do not claim that Jason is not a member of a narrowly defined class of foreseeable victims or that the harm was not foreseeable. Rather, they claim that the trial court properly granted their motion to set aside the verdict because, on the basis of the evidence adduced at trial, the jury could not have reasonably concluded that the lack of supervision subjected Jason to imminent harm.

We agree with the trial court that "there was no evidence that [Jason], in traveling the brief distance from the 'all purpose' room to the playground, was in imminent harm. True, the principal knew that if children were not watched they might run in the hall, and that if they ran in the hall, they could get hurt. But to regard this as imminent harm would be to equate that term with mere foreseeability, and to thereby transfer the governance of elementary schools ... from the principal's office ... to the [courtroom]...."

The plaintiffs argue that this case is analogous to Burns v. Board of Education, supra, 228 Conn. at 646, 638 A.2d 1. Burns, a high school student, incurred injuries when he slipped and fell on a patch of ice located in the school courtyard. He filed an action against the superintendent, the board of education and the principal, alleging that the defendants were negligent in failing to salt and sand the courtyard properly. The defendants claimed governmental immunity as a special defense. The plaintiff claimed that he was a member of a foreseeable class of victims, and entitled to the benefit of an exception to the doctrine of immunity. Our Supreme Court held that a defendant "bears the responsibility for failing to act to prevent the risk of imminent harm to school children as an identifiable class...." (Emphasis added.) Id., at 649, 638 A.2d 1. Furthermore, the court found that there was a risk of imminent harm: "Unlike the incident in Evon v. Andrews, supra, 211 Conn. 501 this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly 'treacherous' area of the campus." (Emphasis added.) Burns v. Board of Education, supra, at 650, 638 A.2d 1.

We conclude that this case is analogous to Evon v. Andrews, supra, 211 Conn. at 508, 559 A.2d 1131. In Evon, where a decedent's administratrix alleged that the city of Waterbury and various city officials were negligent in failing to inspect the decedent's dwelling reasonably, properly and adequately and, as a result of such negligence, failed to prevent the occurrence of a fire. The defendants claimed that they were shielded from liability pursuant to the doctrine of governmental immunity. In holding that the identifiable person-imminent harm exception did not apply, our Supreme Court concluded that "[t]he risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future.... [T]he plaintiffs' decedents were not subject to 'imminent harm.' This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot. See Sestito v. Groton, supra, [178 Conn. at 528, 423 A.2d 165]. The present allegations do not even rise to the level of the imminence we rejected in Shore v. Stonington, [187 Conn. 147, 444 A.2d 1379 (1982) ] in which a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiff's decedent. In the present instance, the fire could have occurred at any future time or not at all. We cannot accept the proposition that the plaintiffs' decedents in this case were ......