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Perry v. Town of East Haddam

Superior Court of Connecticut, Judicial District of Middlesex, Middletown

May 19, 2016

Tucker Perry, PPA Ronald Perry et al.
v.
Town of East Haddam et al Opinion No. 133748

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Vitale, Elpedio N., J.

          MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#115 AND #119)

          VITALE, JUDGE

         This case comes before the court on two motions for summary judgment. The defendants move for summary judgment on the plaintiffs' complaint, and the third-party defendant moves for summary judgment on the defendants' third-party complaint. The issues presented by the defendants' motion are: (1) whether the defendants derived " a special corporate profit or pecuniary benefit" from the negligent acts and omissions complained of such that they may be held liable pursuant to General Statutes § 52-557n(a)(1)(B); [1] and (2) whether the exculpatory agreement executed by the third-party defendant on behalf of the minor plaintiff is void as against public policy. The enforceability of the exculpatory agreement is the sole issue raised by the third-party defendant's motion, and, therefore, both motions for summary judgment will be addressed herein. For the reasons articulated below, the court concludes there is a genuine issue of material fact as to whether the defendants were engaged in a proprietary function and that the exculpatory agreement is void as against public policy.

         Nature of the Proceedings

         The plaintiffs Tucker Perry (Tucker), through his father and next friend Ronald Perry, and Ronald Perry (Ronald), individually, commenced this action on July 24, 2014, by service of process on the defendants town of East Haddam (town) and the town's recreation director, Tiffany Quinn. The complaint consists of Tucker's claim of negligence (count one) and Ronald's derivative claim for the expenses he incurred in caring for Tucker (count two).[2] The plaintiffs' claims arise from an alleged injury to one of Tucker's teeth that he sustained while using a scooter at the town's " summer day camp" (day camp), which Quinn was charged with administering. The plaintiffs essentially allege that the defendants were negligent in their supervision and instruction of campers; their hiring, training, and instruction of camp staff; their failure to establish safety standards or guidelines; and their delay in obtaining medical care for Tucker.

         On September 15, 2015, the defendants filed their answer to the plaintiffs' complaint and asserted several special defenses, which include, in relevant part, common-law and statutory governmental immunity and contractual release of liability pursuant to an exculpatory agreement allegedly executed by Tucker's mother, Linda Treat Perry. On November 25, 2015, the plaintiffs filed a reply in which they denied the defendants' special defenses and pleaded, as matters in avoidance, the identifiable victim-imminent harm exception to discretionary act immunity and that the exculpatory agreement is void as against public policy. On December 21, 2015, the defendants moved for summary judgment on both counts of the plaintiffs' complaint on the grounds that the defendants are entitled to governmental immunity and that they were released from liability pursuant to the exculpatory agreement. The defendants also filed a memorandum of law in support of the motion (memorandum in support) and several exhibits. On March 9, 2016, the plaintiffs filed a memorandum of law in opposition to the defendants' motion for summary judgment (memorandum in opposition), along with several exhibits.

         On September 15, 2015, the defendants moved to implead Treat Perry as a third-party defendant. The court, Aurigemma, J., granted the motion, and the defendants thereafter effectuated service of process on the third-party defendant on October 11, 2015. The defendants allege in their third-party complaint that, prior to the day Tucker was injured, the third-party defendant voluntarily executed an exculpatory agreement by which she agreed to indemnify the defendants from any and all liabilities incident to Tucker's involvement and participation in the day camp, even if arising from the negligence of the defendants. The defendants thus assert that, because the plaintiffs' claims are incident to Tucker's involvement or participation in the day camp, the third-party defendant is contractually required to indemnify the defendants with regard to these claims.

         On November 25, 2015, the third-party defendant filed her answer to the defendants' third-party complaint and asserted, as a special defense, that the exculpatory agreement violates public policy and is therefore void.[3] On February 8, 2016, the third-party defendant moved for summary judgment on this special defense. In support thereof, she filed a memorandum of law (memorandum in support) and several exhibits. On March 8, 2016, the defendants filed a memorandum of law in opposition to the third-party defendant's motion for summary judgment (memorandum in opposition), as well as several exhibits.

         The court heard oral argument on both motions on March 14, 2016.

         DISCUSSION

         " Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). " [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." (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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " 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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015).

         I

         GOVERNMENTAL IMMUNITY

         As the first basis for their motion for summary judgment, the defendants argue in their memorandum in support that they are entitled to discretionary act immunity pursuant to the common law and General Statutes § 52-557n(a)(2)(B).[4] Specifically, they contend that there is no genuine issue of material fact with respect to whether they were engaged in discretionary acts at the time Tucker was injured and whether the identifiable victim-imminent harm exception[5] to discretionary act immunity applies.[6] The defendants also point out in their memorandum in support that the plaintiffs have not alleged in their complaint that the town's operation of the day camp was proprietary, rather than governmental, in nature, such that the proprietary function " exception" to governmental immunity contained in General Statutes § 52-557n(a)(1)(B)[7] would apply. Defs.' Mem. Support p. 33. The defendants nevertheless argue that there is no basis for such a " claim." Id., p. 35. Because resolution of the governmental-versus-proprietary issue is dispositive, the court begins there.

         Before addressing the substance of the defendants' arguments regarding the governmental nature of their alleged acts and omissions, the court first disavows the defendants' suggestion that this issue is not properly before the court because the plaintiffs have not raised it. The court acknowledges that the plaintiffs have not explicitly alleged in their complaint that the defendants had been acting pursuant to a proprietary function, and the court also recognizes that the plaintiffs likewise did not make such an allegation as a matter in avoidance of the defendants' special defenses. Nevertheless, because establishing the governmental nature of ...


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