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Teodoro v. Town of Bristol

Superior Court of Connecticut, Judicial District of New Britain, New Britain

April 18, 2016

Dawn Teodoro ppa Brianna Teodoro
v.
Town of Bristol et al Opinion No. 133484

          MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Robert E. Young, J.

         ALLEGATIONS AND PROCEDURAL HISTORY

         In her second amended complaint, the plaintiff, Brianna Teodoro, makes the following allegations. Defendant town of Bristol (the town) provided public school education through defendant Bristol Board of Education (the board) " to coordinate a variety of educational and ancillary social and recreational activities for the students enrolled in its public schools." The board acted through defendant Sophia Bayne (Bayne) " to teach, instruct, supervise and otherwise fulfill the responsibilities, statutorily imposed on the defendants town of Bristol and its Board of Education." Bayne is the junior varsity cheerleading instructor/coach for Bristol Eastern High School; the plaintiff was a student at the high school and participant in the junior varsity cheerleading squad. On January 7, 2013, after school hours, the plaintiff was participating in a cheerleading practice supervised by Bayne when she fell and suffered injuries. The plaintiff has sued the town, the board and Bayne for negligence.

         The defendants have moved for summary judgment on the basis that they enjoy governmental immunity to which there is no applicable exception. The plaintiff has filed a memorandum of law in opposition to the motion and the defendants filed a reply brief. As the parties did not seek permission of the court to file additional briefs pursuant to Practice Book § 11-10(c), the court does not consider these. Likewise, certain exhibits attached to the memoranda of the parties are either not authenticated or certified. The defendants do not agree that the court may consider these exhibits. Pursuant to Practice Book § § 17-45 and 17-46, the court does not consider any supporting materials filed by any party which are not authenticated or certified.[1] The parties presented oral argument in support of their respective positions on March 7, 2016.

         LEGAL STANDARD

         " 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." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

         " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

         " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . Hearsay is an out-of-court statement offered to prove the truth of the matter asserted . . . Unless subject to an exception, hearsay is inadmissible." (Citations omitted; internal quotation marks omitted.) Midland Funding, LLC v. Mitchell-James, 163 Conn.App. 648, 655 (2016).

         ANALYSIS

         I. Governmental Immunity

         " The law of this state regarding the liability of municipalities and their agents is well established. [Our Supreme Court] has previously stated that [a] municipality itself was generally immune from liability for its tortious acts at common law . . . [The court has] also recognized, however, that governmental immunity may be abrogated by statute . . . [Section] 52-557n(a)(1) provides in relevant part: Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer, or agent thereof acting within the scope of his employment or official duties . . . [The court] previously [has] concluded that [t]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from torts committed by their employees and agents . . ." Subdivision (2) of § 52-557n(a), lists two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this appeal provides: Except as otherwise provided by law, a political subdivision shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law . . . The statute thus distinguishes between discretionary acts and those that are ministerial in nature, with liability attaching to a municipality only for negligently performed ministerial acts, not for negligently performed discretionary acts . . .

         " [Our Supreme Court] has recognized an exception to the discretionary act immunity that allows for liability when 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 . . . This identifiable person-imminent harm exception has three requirements: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm . . . All three must be proven in order for the exception to apply . . . The ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury." (Citations omitted; internal quotation marks omitted.) Texidor v. Thibedeau, 163 Conn.App. 847, 856-57 (2016).

         II. Public or Private Duty

         " The availability of governmental immunity as a defense depends on two factors: (1) whether the employee's action was public or private in nature, and (2) whether the employee was engaged in a discretionary or governmental act, versus a ministerial act . . . [T]he test to discern between a public and private duty is as follows: [i]f the duty imposed upon the public official by the statute is of such a nature that the performance of it will affect an individual in a manner different in kind from the way it affects the public at large, the statute is one which imposes upon the official a duty to the individual, and if the official is negligent in the performance of that duty he is liable to the individual . . . Pursuant to their duty to provide public education, the town boards [of education] are given substantial discretion to determine educational policy . . . Included in this authority is the power to ...


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