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Appellate Court Notes: Week of November 7, 2016

Welcome to our Supreme and Appellate Court summaries webpage. On this page, I provide abbreviated summaries of decisions from the Connecticut Appellate Courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants. I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long. It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements. These summaries are limited to the civil litigation decisions. I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my own personal opinion. Pullman & Comley’s Appellate Practice Group of which I am a member includes experienced appellate advocates in almost every area of the law.  Should you have a need to consult about a potential appeal, please email me at emccreery@pullcom.com. I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted November 23, 2016

Supreme Court Advance Release Opinions:

Plaintiff, a 15 year-old student was struck by a car in the school’s driveway when he got off the school bus and walked across the street, off school grounds, to go have a smoke.  He sued the Town’s Superintendent of Schools, the schools’ principals, the assistant principals, members of the Board of Education, and the Town for failure to supervise staff and students to ensure that the staff watched the buses to keep the kids from leaving school grounds and not providing a safe crossing at what was known to be a busy and dangerous intersection.

The Trial Court granted summary judgment to the Defendants, holding that the duty to supervise staff and students is discretionary, and thus shielded by governmental liability.  As to the two Defendants, the Superintendent and Principal, the Trial Court found that they did have a ministerial duty to assign staff to supervise students, which would not be shielded by governmental immunity, but determined as a matter of law that they had discharged that duty properly.  Therefore, summary judgment was granted on their behalf, as well.  The Supreme Court reversed the grants of summary judgment as to the ministerial duty of the principal defendant only, but in doing so, made a lot of new law expanding the duty of school to protect their students. 

With respect to ministerial duty, it was not enough that the school officials had prepared rosters for someone to monitor the students leaving the arriving buses.  There remained an issue that once created, were the rosters distributed to the staff members to insure they fulfilled their duties? The superintendent, did properly dispose of his ministerial duty when he delegated the responsibility for the bus duty roster to the principal. 

Summary judgment on the discretionary issues, was properly granted because even if the Plaintiff was a foreseeable victim, notwithstanding having left school property, there was no way for the Defendants to know that risk was imminent to a student arriving by bus, who would then leave school grounds in violation of school policy.  The student never claimed school officials knew he and others were catching a smoke each day.  In fact he claimed they could do it because no one was watching.  Only if the school officials knew they were leaving school property by a dangerous route and not trying to stop it could they be liable under the identifiable person imminent harm exception.

Additionally, it would not be enough for the Plaintiff to argue that the school administrators failed in their actual ensuring that the monitors did their jobs.  As a matter of first impression, the Court concluded like other states, that is a discretionary - not a ministerial – function.  The mere fact that the school officials would occasionally walk the grounds to make sure the jobs were being performed is merely good exercise of a discretionary function. 

With respect to the actual distribution of the bus-watch-roster, the school officials admitted that they could not be 100% sure that it was distributed; a copy was not kept, because the school year had lapsed.  The Court faulted the school for not keeping a copy of the school bus monitor roster when, prior to the end of the school year, the Plaintiff filed his notice of intent to bring a civil action which stated, among other things, the school was negligent by failing to take precautions that students did not leave school grounds upon arriving at the school.  That should have triggered the school administrators to preserve the potentially relevant document of the bus duty roster. 

Further, the student claimed he had been taking this cigarette break for two weeks and never saw a staff member patrolling the incoming buses.  The Court questioned if, in fact, the memo had been distributed to the staff, how could it be that four different staff members, two per week, could have all failed to report for bus duty if, in fact, they had been properly notified to do so?  However, as stated above, the Defendants could not know he was subject to imminent harm.

The key ruling is that school officials may be held liable for injuries occurring off school grounds, if the official’s negligence on school property was the proximate cause of the injuries.  As a matter of first impression, the decision held being a fifteen-year old, he did not abandon the status of a foreseeable victim just because he left the school grounds.  The Court said the school must exercise reasonable care to prevent children from leaving school during school hours, when doing so would expose them to imminent harm.  The Court gave as examples a school should not allow six-year olds to wander out into the street; a school should not allow a high school student to leave the premises when they are informed of an active shooting situation; etc.  It should be up to a jury to conclude what potential scenario could present harm to a student.  But the examples left vast unknowns how liable a school might be.  The Court suggested it will depend on the age of the student and the particular facts. 

The Court said it did not have to decide the Plaintiff’s claim whether or not the school also had a duty to provide safe passage to and from school by providing a crossing guard, because in this case, the student was clearly safely delivered to the school property, and there is no duty to safely provide for a student leaving school property in violation of school policy.  Thus, the Plaintiff can only prevail here by showing the school’s on-school-property-supervision was deficient.

Next, the Court said that although the earlier Haze decision seemed to expand when a student could qualify for the Imminent Harm Exception (in that case, the school knew that a locker room was dangerous for months before the accident and did nothing about it), the question here was not whether the school crossing was dangerous, but whether specifically, the school dropped students off on school grounds and was aware students were crossing the road in violation of school policy by leaving the property after the school buses arrived.  No such evidence was presented by the Plaintiff that the school knew - or should have known – that he was acting the way he did.  In fact, the Plaintiff claimed no faculty members were observing his conduct.

In a Footnote, the Court added that the jury may consider the Plaintiff’s own conduct to voluntarily leaving school property in violation of a known policy as a factor in comparative negligence.

Another Footnote adds that all of the sister states that have considered this issue have uniformly declined to impose a duty upon schools for the supervision of students off-grounds, but cited to other states imposing liability when the students were allowed to leave campus and encountered danger when they should not have been allowed.

Another Footnote adds that it might not even matter had the school put a crossing guard there, because that would have just forced students like this one who were trying to break the rules to find another place across the street where they would not be detected by the crossing guard.

A Footnote criticizes Justice Everleigh, who would have gone even further in his Dissent by finding the Plaintiff was an identifiable person imminent harm exception candidate, by merely demonstrating that the school should have been aware the students arriving by bus would be in danger if not properly supervised after arriving.  The Majority noted that was not enough, and the school must be aware of the specific danger that caused the Plaintiff’s injuries.  In this case, the specific danger would be knowing that the students were regularly leaving campus and using that crossing to go and smoke a cigarette in violation of school policy.

Appellate Court Advance Release Opinions:

  • AC37389 - Hanson v. Commissioner of Correction
  • AC38169 - Gooden v. Commissioner of Correction
  • AC36979 - State v. Rivera
  • AC36979 - Parker v. Commissioner of Correction

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  © 2016 Pullman & Comley, LLC. All Rights Reserved. 

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