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Strycharz v. Cady

Supreme Court of Connecticut

November 15, 2016

JOSEPH STRYCHARZ ET AL.
v.
RICHARD D. CADY ET AL.

          Argued November 6, 2015

          Albert L. J. Speziali, with whom, on the brief, were Thomas J. Keramidas and Paul Costa, for the appellants (plaintiffs).

          Scott R. Ouellette, with whom, on the brief, were James G. Williams and Ryan J. McKone, for the appellees (defendant town of Colchester et al.).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          PALMER, J.

         The named plaintiff, Joseph Strycharz, [1]commenced this action against the defendants Karen A. Loiselle, the superintendent of schools for the town of Colchester, Jeffry P. Mathieu, the principal of Bacon Academy (school), a public high school in the town of Colchester, Dale J. McCubrey and Ross Sward, assistant principals, William D. Hettrick, John Mazzarella, Elizabeth A. Ciccione, Linda M. Hodge, and Andrew C. George, Jr., members of the Board of Education of the Town of Colchester (board), and the town of Colchester (town), among others, [2] after he was struck by a vehicle at the intersection of Norwich Avenue and the school's driveway on the morning of September 20, 2007. The plaintiff sought damages from the defendants for negligent supervision of school staff and students during school hours and indemnification from the town for those defendants' negligence pursuant to General Statutes (Rev. to 2007) § 7-465.[3] The town, Loiselle, Mathieu, McCubrey, Sward, Hettrick, Mazzarella, Ciccione, Hodge, and George, among others, moved for summary judgment, claiming, inter alia, that governmental immunity shielded them from liability.[4] The trial court granted the motion with respect to those defendants as to the counts directed at them after concluding that their duty to supervise school staff and students was discretionary, and, as a consequence, they were shielded from liability by governmental immunity. Although the trial court concluded that the responsibilities of Mathieu, McCubrey and Sward also included a ministerial duty to assign school staff to supervise students during school hours, the court also determined that they, too, were entitled to summary judgment because the undisputed evidence established as a matter of law that they had discharged that ministerial duty. On appeal, [5] the plaintiff claims that the trial court improperly granted the motion for summary judgment. We agree with the plaintiff that the trial court improperly granted the motion for summary judgment as to McCubrey and Sward with respect to the plaintiff's claim that they breached their ministerial duty to assign school staff to supervise students during school hours. We uphold the granting of the motion for summary judgment in all other respects.

         The following undisputed facts and procedural history are relevant to our resolution of this appeal. The school is located on Norwich Avenue in Colchester. Norwich Avenue is a two lane, bidirectional, undivided state highway approximately thirty feet wide with an average daily traffic volume of approximately 5600 vehicles in front of the school. Although the posted speed limit where the school is located was forty miles per hour, approximately 15 percent of vehicles travelled at speeds near or above fifty miles per hour.[6] To enter or leave school property, pedestrians used a crosswalk located at the intersection of Norwich Avenue and the school's driveway entrance. Because the school's student body had grown to about 1000 by 2006, the intersection was the site of heavy traffic on school day mornings and at dismissal time.[7] The entire student body arrived each morning in a span of approximately twenty minutes, resulting in heavy vehicular traffic from school buses, student drivers, and parent drivers who were dropping off their children.[8] Despite the heavy traffic and congestion, the intersection had neither a traffic light nor a person directing traffic, and the relatively small number of students who walked to and from school had to traverse Norwich Avenue unassisted.

         For some time, the safety of the intersection in front of the school had been a matter of concern for the town and school administrators. In light of these concerns, in the spring of 2006, Loiselle and Jenny Contois, the town's first selectperson, organized a committee of school and town administrators and local and state police officers to address traffic and pedestrian safety at the intersection. The committee undertook an initiative that called for, inter alia, the cutting and trimming of trees to improve sight lines at the intersection, continuing education of student drivers about safe driving, petitioning the state to install a traffic signal, and continuing regular police enforcement of speed limits in the vicinity. In addition, the iniative expressly directed Loiselle to investigate options for hiring a traffic agent for the intersection. Sometime after the committee was formed, Loiselle, at the request of the board, contacted the Connecticut Interlocal Risk Management Agency (CIRMA), an insurance carrier for the board and the town, and requested, among other things, that it assess the need for a traffic agent at the intersection. In response to Loiselle's request, Jeffrey Rogers, CIRMA's risk control consultant, assessed the intersection and made several recommendations, including a recommendation to use a trained traffic agent and to install signs at the entrances to the crosswalk that would advise pedestrians not to enter the roadway until it was safe to do so. Thereafter, the board reviewed CIRMA's recommendations and, on June 19, 2007, instructed Loiselle to contact the town's police commission ‘‘regarding a shared responsibility for the crossing guard/traffic agent.'' When Loiselle addressed the police commission on July 23, 2007, she indicated that there was ‘‘an immediate need'' for a crossing guard at the intersection. The police commission agreed that a traffic agent at the intersection was needed but informed the board that the town would have to shoulder the cost. On August 15, 2007, the board voted to hire a traffic agent for the intersection, with one member noting that ‘‘this was a small investment for . . . student safety.'' The traffic agent could not commence work, however, until the new budget was approved in October, 2007.

         In the meantime, the school maintained an ongoing student supervision program designed to enhance student safety. In accordance with that program, Mathieu was responsible for assigning school staff to supervisory duties throughout the school. As part of the program, two staff members were assigned, on a weekly rotating basis, to the bus port, both in the morning and in the afternoon. One of the reasons for the morning duty was to ensure that arriving students did not leave the school premises and safely proceeded directly into the school building. Instead of assigning school staff members to their posts personally, Mathieu delegated that duty to McCubrey.[9] According to McCubrey's deposition testimony, she drafted a duty roster each summer before the start of the school year and then provided it to school staff members. The roster informed staff members about their assigned dates, times and respective posts, and advised them of expectations and responsibilities with regard to their duties, including the bus port duty.[10]

         In the summer before the school year commencing in the fall of 2007, however, McCubrey was out of work on medical leave. As a result, McCubrey prepared the outlines for the duty roster and submitted them to Sward's office, where, as McCubrey explained, the outlines may have been ‘‘tweaked'' further.[11] She was unable to identify, however, who had received the outlines or what happened to them following their submission to Sward's office. Nevertheless, McCubrey insisted, both in her responses to the plaintiff's interrogatories and at her deposition, that the roster had been finalized and distributed to the staff by the beginning of the school year.[12] No copies of the outlines or the actual roster could be located, however. In addition, the school was unable to produce the names of persons assigned to bus duty on the day of the accident or during the two weeks immediately preceding it.

         The plaintiff followed a regular routine on school days beginning on September 5, 2007, the first day of the school year, and continuing until the day of the accident on September 20, 2007. The plaintiff took the school bus every morning and arrived at school at 7:15 a.m. On most days, upon his arrival at the school's bus port, the plaintiff would walk back to the crosswalk, traverse Norwich Avenue to leave school grounds, and smoke a cigarette before returning back to the school to attend classes.[13] During that two week period culminating on September 20, 2007, the plaintiff observed ‘‘many'' other students who had taken the bus to school smoking cigarettes in the same area. At no time, however, did he see anyone from the school staff at the bus port during that time, and no one ever directed him to go into the school building or attempted to stop him from leaving school grounds.

         On the morning of September 20, 2007, the plaintiff, who had just begun his freshman year, took the bus to school, and, while on the bus, he and his friend, Alexander Lily, decided to have a cigarette before going to class. The boys agreed to leave school grounds by crossing to the other side of Norwich Avenue even though they knew that doing so without explicit authorization violated school policy. Once at the school's bus port, the plaintiff and Lily conversed momentarily and then proceeded directly to the crosswalk at the intersection of the school's driveway and Norwich Avenue. As the plaintiff was crossing Norwich Avenue, however, he was struck by a vehicle driven by the named defendant, Richard D. Cady. According to the plaintiff, no school faculty or staff members were visible at the bus port, and no one sought to prevent him from leaving school property.

         The plaintiff thereafter commenced this action in October, 2009, asserting that his injuries were caused by Cady's negligence and the negligence of certain other defendants. With respect to the board members, the plaintiff alleged, inter alia, that they had breached their duty to provide a safe school setting in accordance with General Statutes (Rev. to 2007) § 10-220.[14] Specifically, the plaintiff alleged that the board members had failed (1) to implement rules and regulations pertaining to school safety, (2) to take steps to ensure that students did not leave school grounds after arriving at school in the morning, (3) to assign an agent to monitor and direct pedestrian and vehicular traffic at the intersection, and (4) to provide warnings, sign age or lights, or otherwise to take steps to give notice to students of the danger of motor vehicle traffic at the intersection.

         With respect to Loiselle, the plaintiff alleged that she had breached her duty to enforce the rules governing student safety as required by policy 5142 (a) of the Colchester Public Schools Policies, Regulations and Bylaws (School Policies and Regulations).[15] In particular, the plaintiff alleged that Loiselle failed (1) to implement rules and regulations in accordance with that policy, (2) to inspect and discover safety hazards on school grounds, (3) to properly supervise administrators and staff, (4) to assign a traffic agent at the intersection, and (5) to provide adequate notice to students concerning the motor vehicle traffic at the intersection.

         With respect to Mathieu, McCubrey and Sward, the plaintiff, in addition to repeating the averments leveled against Loiselle, alleged that they had breached their duty to protect students from foreseeable dangers. In particular, the plaintiff alleged that Mathieu, McCubrey and Sward had failed (1) to execute their nondiscretionary ministerial duty to assign staff members to bus duty, and (2) to ensure that the assigned staff members did in fact report for and carry out that bus duty. Finally, the plaintiff sought indemnification from the town pursuant to § 7-465.[16]

         Certain defendants moved for summary judgment; see text accompanying footnote 4 of this opinion; asserting that they were entitled to governmental immunity under General Statutes § 52-557n (a) (2) (B).[17] In particular, the defendants contended that they were shielded from liability under the doctrine of governmental immunity because their allegedly negligent acts involved the exercise of judgment or discretion. Those defendants also argued that the plaintiff could not satisfy the only potentially applicable exception to that doctrine-the identifiable person-imminent harm exception-because he could neither establish that he was an identifiable person nor demonstrate that any potential harm was imminent. Finally, insofar as the plaintiff alleged that Mathieu, McCubrey and Sward also had breached a ministerial duty, Mathieu, McCubrey and Sward maintained that the plaintiff presented no evidence to establish a breach of any such duty.

         The trial court granted the motion for summary judgment. With respect to the plaintiff's negligence claims against the members of the board, the court concluded that their duty to provide a safe school environment pursuant to § 10-220 (a) (4) was discretionary in nature. The court reached its conclusion because the plaintiff could not point to ‘‘any rule, policy, or directive that limits the board's discretion by prescribing the manner in which [the board members] must provide such a setting.'' The court reached a similar conclusion with respect to the plaintiff's claims against Loiselle. Specifically, the court explained that there was no regulation or policy that limited Loiselle's ‘‘discretion by prescribing the manner in which she must provide a safe intersection or supervise morning arrival.'' Accordingly, the court found that the board members and Loiselle were engaged in discretionary acts and, therefore, entitled to governmental immunity unless the plaintiff could establish an exception to that immunity.

         The court, however, also agreed with the contention of the board members and Loiselle that the identifiable person-imminent harm exception to governmental immunity did not apply in the present case. First, the court concluded that the plaintiff could not satisfy the identifiable person element of the exception because the plaintiff, by voluntarily leaving school grounds, had lost ‘‘his . . . status as a member of an identifiable class of victims . . . .'' In particular, the court determined that, in order for the plaintiff to be considered an identifiable person for purposes of the exception, he had to establish that he was ‘‘compelled to be present at the [time when and the] place where the injury occurred . . . because that is where and when the persons charged with protecting [the plaintiff] from harm would expect [him] to be.'' Although the court determined that the plaintiff became a member of an identifiable class of foreseeable victims when he arrived at school on the school bus, it nonetheless concluded that the plaintiff had relinquished his status as a member of that class when he left school property of his own accord.

         The court further concluded that, even if the plaintiff was an identifiable victim, the intersection in question did not constitute an imminent harm. Specifically, the court concluded that potential harm was not imminent because it was not limited to a discrete time during which an injury could have occurred. In reaching that conclusion, the trial court relied on the principle articulated by this court in Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994), overruled in part by Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014), in which we held that an icy patch on a school walkway presented an imminent harm to students because the accident could not have occurred at any time in the future but was limited temporally and geographically. The trial court then concluded that, because the risk of an accident at the intersection in question, although possibly substantial, was ‘‘ongoing and continuous, rather than imminent and discrete, '' the present case was governed by Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), in which this court determined that harm was not imminent if it ‘‘could have occurred at any future time or not at all.'' Id., 508. Accordingly, the trial court concluded that, because the plaintiff could not satisfy either prong of the identifiable person-imminent harm exception, it did not apply in this case.

         In light of its determination, the trial court then proceeded to examine whether there was a genuine issue of material fact with respect to the violation of a ministerial duty on the part of Mathieu, McCubrey and Sward. With respect to Mathieu, the court first determined that he had a ministerial duty to assign staff members to bus duty pursuant to school policy. The court also concluded, however, that Mathieu had fulfilled this duty by delegating to McCubrey the responsibility to create the bus duty roster.[18] The court further determined that both McCubrey and Sward also had fulfilled their ministerial duty to assign staff members to bus duty by creating the actual roster. With respect to the plaintiff's allegations concerning the duty to ensure that staff members were in fact present at the bus port each day, the court concluded that any such duty was discretionary in nature because the plaintiff had presented no evidence of a particular regulation, policy or directive that dictated specifically how Mathieu, McCubrey and Sward were required to discharge the duty.[19] Finally, on the basis of its conclusion that the individual defendants were entitled to summary judgment as a matter of law on all claims, the court further determined that the town also was entitled to summary judgment as a matter of law because the plaintiff's claims against it were derivative of his claims against the individual defendants. This appeal followed.

         On appeal, the plaintiff claims that the trial court (1) misconstrued the nature of the ministerial duty owed by Mathieu, McCubrey and Sward in concluding that it was limited to the preparation of a bus duty roster only, and (2) incorrectly determined that Mathieu, McCubrey and Sward had fulfilled or adequately discharged their ministerial duty to ensure that students were supervised at the school bus port. The plaintiff further contends that the trial court incorrectly concluded that (1) he had relinquished his status as a member of the identifiable class of foreseeable victims when he voluntarily left school property and was injured off school grounds, and (2) the identifiable person-imminent harm exception to governmental immunity is inapplicable in the present case as a matter of law. As to the latter, the plaintiff argues that our decision in Haynes v. Middle-town, supra, 314 Conn. 303, which was issued during the pendency of the present appeal, contradicts the trial court's conclusion that the harm at issue was not imminent.[20]

         With respect to the plaintiff's first claim, we agree that, with respect to Mathieu, McCubrey and Sward, the trial court improperly limited the ministerial duty at issue to the preparation of the bus duty roster because that duty extends to ensuring that the roster is distributed to and received by the appropriate staff members. We also agree with the plaintiff that the trial court incorrectly determined that McCubrey and Sward satisfied that ministerial duty as a matter of law because we are persuaded that there remains a genuine issue of material fact as to whether the bus duty roster was created and whether it was timely distributed to staff members. We further conclude, however, that the trial court correctly determined that Mathieu did, indeed, satisfy his ministerial duty because he reasonably chose to delegate responsibility for the bus duty roster to McCubrey. With respect to the plaintiff's second claim, we conclude that, even though the plaintiff left school property and was injured on a public road, he remained a member of the identifiable class of foreseeable victims to the extent that the defendants had a duty to supervise him while under their custody and control. We further conclude, however, that the motion for summary judgment was properly granted with respect to this claim because there is insufficient evidence in the record from which a jury reasonably could conclude that it was apparent to the defendants that there was a risk of imminent harm because students arriving by bus were crossing Norwich Avenue before the start of the school day.[21]

         I

         We first address the plaintiff's claim that the trial court misconstrued the nature of the ministerial duty owed by Mathieu, McCubrey and Sward insofar as the court limited that duty to the preparation of a bus duty roster. The plaintiff contends that limiting the duty in that manner would effectively render it meaningless without a corresponding ministerial duty to ensure that the roster was distributed to staff members and that they in fact performed their assignments. We agree with the plaintiff that Mathieu, McCubrey and Sward had a ministerial duty to prepare and to distribute the bus duty roster to school staff members. We further conclude, however, that the duty to make sure that school staff members were in fact present at their assigned posts was discretionary.

         It is well settled that municipal employees ‘‘are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . Therefore, [d]iscretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officials and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits . . . from imposing liability for that injury. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. . . . In contrast, municipal [employees] are not immune from liability for negligence arising out of their ministerial acts, [which are] defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . .

         ‘‘Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases [in which] it is apparent from the complaint . . . [that the nature of the duty] . . . turns on the character of the act or omission complained of in the complaint. . . . Accordingly, [when] it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus necessarily were discretionary in nature, summary judgment is proper.'' (Citations omitted; footnote omitted; internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 161-62, 95 A.3d 480 (2014). Lastly, ‘‘[d]etermining whether it is apparent on the face of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions.'' (Internal quotation marks omitted.) Id., 165.

         With these principles in mind, we turn to the evidence in the present case. In his complaint, the plaintiff alleged that Mathieu, McCubrey and Sward had failed to execute their ministerial duty (1) to assign school staff members to bus duty, and (2) to ensure that assigned staff members actually reported to and adequately discharged that duty pursuant to the student safety pro- gram. To support his allegations with regard to the existence and the scope of the ministerial duty, the plaintiff relied on the deposition testimony of Loiselle, who testified that Mathieu had a duty to assign school staff members to different posts, including the bus port, and that he lacked the discretion not to do so. Significantly, however, Loiselle did not provide any testimony with regard to the ministerial duty of Mathieu, McCubrey and Sward to ensure that school staff members actually performed their assignments. We first conclude that this testimony is sufficient to establish that Mathieu, McCubrey and Sward had the ministerial duty to assign school staff members to their respective posts. See Gauvin v. New Haven, 187 Conn. 180, 186-87, 445 A.2d 1 (1982) (testimony of municipal official can establish nature of duty). We further conclude that, in order to be meaningful, this duty necessarily must also include a corresponding ministerial duty to distribute the bus duty roster among staff members. See Soderlund v. Merrigan, 110 Conn.App. 389, 397, 955 A.2d 107 (2008) (‘‘[t]he issue is not whether the procedure to vacate the warrant was mandatory, but whether it was mandatory to vacate the warrant'' [emphasis in original]). After all, a bus duty roster by itself would be useless if it is not distributed to those charged with student supervision, informing them about their respective posts and schedule.

         Second, although Loiselle's testimony provided a sufficient basis to conclude that school administrators had the ministerial duty to assign staff members to monitor students throughout the school, her testimony contains no directive sufficient to support a finding that Mathieu, McCubrey and Sward had the ministerial duty to ensure that assigned staff members, once notified of their responsibilities, actually reported to and adequately discharged their assignments. Furthermore, the plaintiff has not pointed to anything in the record that can be construed as a directive establishing such a ministerial duty. See Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006) (ministerial acts are acts required by city charter provision, ordinance, regulation, policy, rule or other directive). The only evidence that the plaintiff offers in support of his contention is Mathieu's attestation that he, as the school's principal, ‘‘inquired to ensure completion of the assigned task, '' and that school administrators ‘‘periodically walked the school grounds'' in order to ensure that staff members were properly carrying out their assigned duties. That evidence hardly supports the plaintiff's argument; on the contrary, the fact that school administrators engaged in periodic compliance checks necessarily implies that they exercised their judgment or discretion in deciding where, when and in what manner to supervise school staff members.

         In the absence of any evidence establishing a ministerial duty to ensure that staff members reported to their posts and adequately discharged their assignments, the crux of the plaintiff's argument is that Mathieu, McCubrey and Sward were negligent in their general supervision of school employees. Although no Connecticut appellate tribunal has had an opportunity to examine whether general supervision of employees in a public school setting is a discretionary or ministerial function, several of our sister states have concluded that supervision of school personnel is a discretionary function. See, e.g., Reece v. Turner, 284 Ga.App. 282, 286, 643 S.E.2d 814 (2007) (in Georgia, ‘‘decisions concerning the supervision of students and school personnel are considered discretionary''); Marson v. Thomason, 438 S.W.3d 292, 299 (Ky. 2014) (school principal's general supervision of employees is discretionary function). In addition, both state and federal courts that have considered the issue in a different municipal or governmental setting also have concluded that general employee supervision is a discretionary function. See Coley v. Hartford, supra, 312 Conn. 164 (‘‘[police chief] may not be deprived of his power to exercise his own discretion and judgment as to the number, qualifications and identity of officers needed for particular situations at any given time'' [internal quotation marks omitted]); see also Doe v. Holy See, 557 F.3d 1066, 1084 (9th Cir. 2009) (hiring, supervision and training of employees are discretionary acts), cert. denied, ___ U.S. ___, 130 S.Ct. 3497, 177 L.Ed.2d 1089 (2010); Burkhart v. Washington Metropolitan Area Transit Authority, 112 F.3d 1207, 1217 (D.C. Cir. 1997) (decisions concerning hiring, training and supervision of employees are discretionary in nature and, therefore, ‘‘immune from judicial review''); Tonelli v. United States, 60 F.3d 492, 496 (8th Cir. 1995) (‘‘[i]ssues of employee supervision and retention generally involve the permissible exercise of policy judgment and fall within the discretionary function exception''); Attallah v. United States, 955 F.2d 776, 784 (1st Cir. 1992) (‘‘how, and to what extent the [United States] Customs Service supervises its employees certainly involves a degree of discretion''); West Virginia Regional Jail & Correctional Facility Authority v. A.B., 234 W.Va. 492, 514 and n.27, 766 S.E.2d 751 (2014) (citing state and federal cases holding that supervision of employees is discretionary function). We agree with the rationale expressed in the foregoing cases. Furthermore, it is axiomatic that public school administrators perform ‘‘a difficult . . . and . . . vitally important'' job in our society. Morse v. Frederick, 551 U.S. 393, 409, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007). After all, they are in charge of a system that ‘‘enables our nation's youth to become responsible participants in a self-governing society.'' Thomas v. Board of Education, 607 F.2d 1043, 1044 (2d Cir. 1979), cert. denied sub nom. Granville Central School District v. Thomas, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980). Because of the vital importance of their function to society, school administrators undoubtedly ‘‘must be accorded substantial discretion to oversee properly their myriad responsibilities.'' Id. Accordingly, we conclude that Mathieu's, McCubrey's and Sward's duty to ensure that school staff members adequately discharged their assignments was discretionary because it was encompassed within their general responsibility to manage and supervise school employees.

         The plaintiff next argues that the trial court incorrectly concluded that Mathieu, McCubrey and Sward had fulfilled their ministerial duty of assigning school staff members to bus duty by actually preparing the bus duty roster. In particular, the plaintiff contends that the issue of whether a duty properly had been discharged is a question of fact that must be decided by a jury. The plaintiff further contends that there remains a genuine issue of material fact as to whether the bus duty roster was in fact created and distributed to the staff. We reject the plaintiff's arguments with respect to Mathieu, but we agree that the trial court improperly granted summary judgment with respect to McCubrey and Sward because there remains a genuine issue of material fact as to whether the bus duty roster had been created and distributed to school staff members.

         The following additional legal principles inform our analysis of this claim. ‘‘Summary judgment procedure is especially ill-adapted to negligence cases . . . [when] . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation.'' (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). We have also stated, however, that ‘‘[t]he application of the standard of care to the particular facts becomes a question of law . . . when the mind of a fair and reasonable person could reach but one conclusion . . . .'' Smith v. Leuthner, 156 Conn. 422, 424-25, 242 A.2d 728 (1968).

         We first address the issue of whether Mathieu's discharge of his ministerial duty can be decided as a matter of law. There can be no dispute that Mathieu had two distinct ways of discharging his ministerial duty to assign school staff members to different posts throughout the school, including the bus port; Loiselle unambiguously testified that Mathieu could either personally assume the responsibility for assigning staff membrers, or he could delegate that duty to one of the assistant principals.[22] It is also not disputed that Mathieu had, in fact, delegated that duty to McCubrey, and that McCubrey accepted the delegation and was aware of her responsibilities with respect to that duty. On the basis of this uncontroverted evidence, a fair and reasonable person could reach but one conclusion on the issue of Mathieu's duty, namely, that Mathieu, having arranged for school staff members to be assigned to their respective posts, including the bus port, discharged his ministerial duty. Accordingly, we conclude that the trial court properly determined that Mathieu had fulfilled his ministerial duty as a matter of law.

         We reach a different conclusion with respect to McCubrey and Sward. Our examination of the record reveals that there is an inconsistency between McCubrey's deposition testimony and her interrogatory responses. In the latter, McCubrey stated that she had created the bus duty roster during the preceding summer, assigning approximately two weeks of bus duty to each staff member. At her deposition, however, McCubrey testified that she had prepared only outlines of the roster and not the final version of the document. Furthermore, she did not testify that she had personally distributed the bus duty roster to staff members but, rather, that she merely forwarded these outlines to Sward's office for possible tweaking. Significantly, McCubrey was unable to identify who, if anyone, had received the outlines, or what happened to them following their submission. The trial court dismissed ‘‘any expressed uncertainty'' in McCubrey's testimony and relied instead on her responses to the plaintiff's interrogatories. Unlike the trial court, however, we are not prepared to disregard McCubrey's deposition testimony as immaterial. On the contrary, because she conceded that she had created a version of the bus duty roster that might not have been final, and because she could not say what happened to it following its submission to Sward's office, her deposition testimony materially undermines the apparent clarity of her interrogatory responses.[23]

         Equally important, both Mathieu and McCubrey attested that the bus duty roster could not be located because ‘‘[g]enerally . . . such duty rosters are not retained after the completion of the calendar school year.'' The record reveals, however, that, during the school year in question, on March 19, 2008, the plaintiff filed his notice of intention to bring a civil action pursuant to § 7-465. In that notice, the plaintiff alleged, among other things, that the defendants were negligent by ‘‘[f]ailing to take precautions to ensure that students . . . did not leave the school grounds during school hours after arriving at school . . . .'' This allegation provided more than sufficient notice to school administrators that they needed to preserve the potentially relevant documents, including the bus duty roster, or otherwise to identify the persons on duty on the day of the accident.

         Finally, the plaintiff testified that he smoked cigarettes across from the school ‘‘[a]lmost every day'' over the two weeks immediately preceding the accident, and, in his affidavit, he attested to the fact that he did not see any staff members on duty at the bus port during that time frame. In addition, Lily testified at his deposition that, on the morning of the accident, both he and the plaintiff exited the school bus, had a brief conversation at the bus port and proceeded in the direction of the crosswalk without encountering any staff member as they did so. There was no evidence submitted to the contrary that would allow an inference that the staff members were present but simply not seen by the two students. It is difficult to see how no fewer than four different staff members-two per week-all could have failed to report for bus duty for a two week period if they had been properly notified by McCubrey or Sward. Therefore, we disagree with the trial court's determination that McCubrey's responses ‘‘leave no real doubt that bus duty was actually assigned.'' Accordingly, with respect to McCubrey and Sward, we conclude that there remains a genuine issue of material fact as to whether the bus duty roster had been created and whether it was timely distributed to staff members. Thus, the trial court improperly granted the motion for summary judgment as to McCubrey and Sward, and the case must be remanded for further proceedings with respect to this issue.

         II

         We next address the plaintiff's claim that the trial court incorrectly determined that, as a matter of law, the identifiable person-imminent harm exception to governmental immunity is inapplicable to the present case. In particular, the plaintiff contends that the trial court incorrectly concluded that he forfeited his status as a member of the identifiable class of foreseeable victims when he voluntarily left school property and was injured on a public road. The plaintiff further contends that our decision in Haynes v. Middletown, supra, 314 Conn. 303, which was issued after the trial court's decision in the present case, is at odds with the trial court's conclusion that the harm at issue was not imminent. We address each of the plaintiff's contentions in turn.

         The following additional legal principles concerning the doctrine of governmental immunity guide our analysis. ‘‘The imminent harm exception to discretionary act immunity [for municipalities and their employees] applies 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 . . . . By its own terms, this test requires three things: (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. . . . We have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state. . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception.'' (Citations omitted; footnote omitted; internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 329. ‘‘[T]he 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 . . . [in which case] resolution of those factual issues is properly left to the jury.'' (Internal quotation marks omitted.) Haynes v. Middletown, supra, 314 Conn. 313.

         We note, at the outset, that the plaintiff does not challenge the trial court's determination that the board members and Loiselle were engaged in discretionary conduct. Furthermore, as we previously concluded, Mathieu, McCubrey and Sward also were engaged in discretionary conduct with the exception of their ministerial duty to assign school staff members to bus duty under the student supervision program. Therefore, the plaintiff can prevail against the defendants on his outstanding claims of negligent supervision only if he falls within the identifiable person-imminent harm exception.

         A

         The plaintiff first contends that the trial court incorrectly concluded that the defendants did not owe him a duty of care because he relinquished his status as a member of the identifiable class of foreseeable victims when he voluntarily left school property. According to the plaintiff, his conduct should not have affected his class status because that status attaches when school officials take custody of a student at the beginning of the school day, at which time they have a duty to protect the student from imminent harm for the remainder of the school day.[24] The plaintiff also ...


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