Schwartz v. Newington Board of Education
| Decision Date | 28 January 2020 |
| Docket Number | HHDCV186103559 |
| Court | Connecticut Superior Court |
| Parties | Sherry Schwartz v. Newington Board of Education et al. |
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Taylor, Mark H., J.
The defendants have filed motions for summary judgment challenging their liability for serious injuries sustained by the plaintiff after falling in a corridor at Newington High School. Motion for summary judgment docket no. 124 was filed on April 1, 2019, by the Town of Newington, Newington Board of Education, Richard Vida and Pamela S. Muraca (municipal defendants). Motion for summary judgment docket no. 152 was filed on November 13, 2019, by the Greater Hartford Church of Christ (GHCC). The motions for summary judgment are opposed by the plaintiff and were heard by the court on December 23 2019. Upon review of the evidence presented, as well as the law of municipal and premises liability, the motions are denied.
The plaintiff fell while walking to a bathroom from an auditorium, leased for church services by the GHCC from the Newington Board of Education (NBOE), on Sunday, July 15, 2018, at approximately 10:45 a.m. The evidence presented shows that the floor was wet from a leaking HVAC unit above the corridor, which is adjacent to the auditorium and classrooms specifically leased by the GHCC. The evidence also shows that the building was inspected by an NBOE custodian prior to the scheduled arrival of the GHCC congregation at 9:00 a.m.
The plaintiff alleges that the lease to the GHCC for the auditorium and classrooms for Sunday services included an additional charge for custodial services performed by municipal employees before and after they opened and closed the building for the GHCC members. The evidence reflects a weekly fee of approximately $1, 300 over the course of the rental of the high school. The plaintiff provides evidence to support that the municipal defendants’ revenue escalated in the fiscal years preceding the injury. The plaintiff also submitted evidence of calendar year 2018 to highlight the revenue generated from the GHCC alone, compared with the operational costs expended over that same period. The municipal defendants do not deny this evidence, however, they calculate other operational costs over the same time periods to show that the revenue received did not exceed the entirety of these costs.[1]
The depositions of the municipal defendants’ employees also show there were no mandated procedures or protocols established for the high school custodial staff for the maintenance, inspection or repair of hazardous conditions. From these facts, the municipal defendants assert that governmental immunity is maintained, without exception, and the GHCC asserts that it had no possession and control of the premises.
Counts one, three, four and five of the plaintiff’s second amended complaint are directed against the municipal defendants. Count one alleges that the NBOE entered into a leasing agreement for a portion of the high school with the GHCC and, as an outside party, is subject to General Statutes § 52-557n(a)(1)(B), [2] which precludes governmental immunity when a municipal defendant "derives a special corporate profit or pecuniary benefit" from, so-called, proprietary endeavors.
Count three alleges that the municipal defendants, Richard Vida (Vida) and Pamela S. Muraca (Muraca), are liable in their roles as Director of Maintenance and Superintendent of Schools, respectively, as they are vested with the responsibility of supervising NBOE maintenance staff who were negligent in the performance of their duties. Count four alleges that the Town of Newington (town) is liable because it was in possession and control of the high school at the time of the plaintiff’s injury, and is also subject to General Statutes § 52-557n(a)(1)(B), which precludes governmental immunity when engaged in proprietary endeavors.
Count five, also against the town, incorporates the allegations of count three against the individual municipal defendants, Vida and Muraca, and asserts indemnification for their negligence pursuant to General Statutes § 7-465.[3]
Count two of the plaintiff’s second amended complaint is directed against the GHCC and alleges that, as a lessee, it "was in possession and control, and/or managed and/or maintained the said leased premises including the hallway floor at the Newington High School where the incident took place." As such, the second count further alleges the GHCC’s negligence through its agents, servants or employees in allowing or permitting the dangerous condition, and by failing to inspect and determine the custodians’ duties as well as the performance of those duties.
The municipal defendants contend, generally, that they were engaged in a governmental function at the time of the injury and, therefore, are not subject to the proprietary function exception to governmental immunity. They also assert there is no alleged violation of a rule or policy mandating a ministerial duty to maintain the building or inspect for and repair hazardous conditions. As the acts alleged are therefore discretionary, the plaintiff is not within the identifiable victim/imminent harm exception to governmental immunity, as set forth in § 52-557n(a)(2)(B).[4] The municipal defendants further conclude that, categorically and as a matter of undisputed fact, the plaintiff is outside the only recognized exception to this rule, limited to schoolchildren attending public schools during school hours. See Burns v. Board of Education, 228 Conn. 640, 649, 638 A.2d 1 (1994) overruled on other grounds by Haynes v. Middletown, 314 Conn. 303, 326 n.18 (), 101 A.3d 249 (2014) ().
The municipal defendants highlight the fact that the GHCC was operating under a Building Use Permit, issued pursuant to Board Policy No. 1330, making school facilities available for non-commercial uses in the public interest, such as educational, cultural, civil, social, recreational, governmental, or of a general political nature benefitting the public at large.[5] Although fees are associated with these permits, the municipal defendants allege they are neither intended nor in fact generate revenue or profits for the town or the NBOE. They instead cover the direct, incremental costs the NBOE would incur to support the event, without pecuniary benefit or special corporate profit.
The plaintiff cites to other facts, giving rise to a material issue in dispute over the proprietary nature of leasing the high school for a fee that substantially exceeds the operating costs of the use of the building. The plaintiff cites escalating revenue from leasing the high school to private entities, generating $98, 561.62 and $161, 562.34 in FY 2018 and FY 2019, respectively. Although these fiscal years are subsequent to the year of the injury in FY 2017, they reflect evidence of the proprietary nature of the endeavor over the course of several years. The plaintiff specifically cites fees of $52, 554.93 received by the NBOE from the GHCC between December 31, 2017 and December 31, 2018 (calendar year 2018), while disbursing only $10, 388.77 during calendar year 2018 for custodial services. This results in excess revenue of more than $40, 000 in calendar year 2018, for example, in excess of identifiable costs and expenses associated with maintaining the facility, not specifically accounted for by the municipal defendants, relative to the time the high school was actually used by private entities, such as the GHCC.
The GHCC contends in its motion for summary judgment that it did not lease the corridor where the plaintiff was injured and, otherwise, had no obligation to inspect, maintain or repair the premises. In fact, all the testimonial evidence shows that this duty has been admitted in depositions of the municipal defendants’ employees, albeit as a discretionary duty subject to immunity. The GHCC further points to the absence of any notice of the defective condition that would give rise to any duty to warn the plaintiff or the municipal defendants who were responsible for maintaining the premises.
"Practice Book [§ 17-49] provides that summary 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 ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).
The court must first determine whether there is a material issue of fact regarding...
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