Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Washburne v. Town of Madison

Court of Appeals of Connecticut

August 15, 2017

BENJAMIN WASHBURNE ET AL.
v.
TOWN OF MADISON ET AL.

          Argued March 9, 2017

         Procedural History

         Action to recover damages for the defendants' alleged negligence, brought to the Superior Court in the judicial district of New Haven, where the court, Nazzaro, J., granted the defendants' motion for summary judgment and rendered judgment thereon; thereafter, the court denied the plaintiffs' motion to reargue, and the plaintiffs appealed to this court. Affirmed.

          Hugh D. Hughes, with whom, on the brief, were Brian Flood and Alexander Bates, for the appellants (plaintiffs).

          Matthew Dallas Gordon, with whom, on the brief, was Nicholas Norton Ouellette, for the appellees (defendants).

          Alvord, Sheldon and Prescott, Js.

         Syllabus

         The plaintiff W, individually and on behalf of her minor son, B, who had sustained a broken leg when he was kicked in the shin area by another student while playing soccer in a third grade physical education class, sought to recover damages for negligence from the defendants, the town of Madison, the town's Board of Education, the principal of the elementary school where B was injured, and D, a substitute physical education teacher who was supervising B's class at the time of his injury. W alleged that B was not wearing shin guards at the time he was injured and that the defendants did not provide B or other children with shin guards, which she alleged violated existing school policies and resulted in B's injuries. The trial court granted the defendants' motion for summary judgment on the ground of governmental immunity and rendered judgment thereon, from which W appealed to this court. Held:

         1. The trial court properly granted the defendants' motion for summary judgment, the court having determined that the acts or omissions underlying W's negligence claims were discretionary in nature and, thus, subject to governmental immunity; the defendants having presented evidence to demonstrate that the decision of whether to require shin guards involved the exercise of judgment and, thus, inherently was discretionary in nature, and W having failed to meet her burden of demonstrating the existence of a clear and unequivocal policy or other written directive mandating the use of shin guards by the town's third grade students, W failed to establish her claim that a genuine issue of material fact existed about whether safety guidelines in the board's physical education guide, specifically, a provision indicating that students should wear shin guards for additional protection, created a ministerial duty the implementation of which was not protected by governmental immunity, as she did not produce any regulation, rule or other directive promulgated by the town or the board that required all students to wear shin guards whenever playing soccer.

         2. W could not prevail on her claim that, even if the defendants' acts or omissions were discretionary in nature, there remained a genuine issue of material fact as to whether B had been subject to imminent harm and, thus, fell within the identifiable person/imminent harm exception to governmental immunity; W presented no evidence that D or the other defendants were aware that an injury similar to the one suffered by B was so likely to happen that they should have acted to prevent it by requiring the students to wear shin guards, nor did W present any evidence to dispute certain of the board's interrogatory answers, which demonstrated that the probability of soccer related injuries in gym class was very low, or to show that the number of injuries was low because students usually wore shin guards when playing soccer, and although W presented evidence that it was apparent to the defendants that an injury to a child playing soccer without shin guards could occur, the foreseeability of such an injury did not translate to imminent harm without a showing that the probability that the injury would occur from the lack of shin guards was high enough to necessitate that the defendants act to prevent it.

          OPINION

          PRESCOTT, J.

         The plaintiff, Jennifer Washburne, who brought the underlying action on behalf of her minor son, the plaintiff Benjamin Washburne (Benjamin), and herself individually, [1] appeals from the summary judgment rendered by the trial court in favor of the defendants-the town of Madison (town); the town's Board of Education (board); Kelly Spooner, the principal of Ryerson Elementary School (Ryerson Elementary); and Erik Delehanty, a substitute physical education teacher-on the ground that the action was barred by governmental immunity.[2] According to the complaint, Benjamin's leg was broken when he was kicked in the shin or ankle by another student while playing soccer at school. The incident occurred during a physical education class at Ryerson Elementary that Delehanty was supervising. The defendants did not provide Benjamin or the other children with shin guards, and Benjamin was not wearing shin guards at the time he was injured, which the plaintiff alleged violated existing school policies and resulted in Benjamin's injuries.

         The plaintiff claims on appeal that the court improperly rendered summary judgment as a matter of law despite the existence of genuine issues of material fact regarding (1) whether safety guidelines in a curriculum guide, which provided that students playing soccer should ‘‘wear shin guards for additional protection, '' imposed a ministerial duty on the defendants to require the use of shin guards by students, and (2) whether, even if such a duty was discretionary, Benjamin had been subject to imminent harm and, thus, an exception to governmental immunity was applicable. We disagree and, accordingly, affirm the judgment of the trial court.

         The record before the court, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following facts and procedural history. On March 16, 2010, Benjamin was a third grade student at Ryerson Elementary. On that day, as part of an organized activity during a gym class supervised by Delehanty, Benjamin and his classmates were permitted to play soccer on the school's athletic field. Before allowing them to play, Delehanty instructed the children about safety and the rules of the game, but he did not require the children to wear shin guards. Several minutes into the scrimmage, Benjamin was kicked in the shin or ankle by another student, which resulted in a fracture to Benjamin's lower left tibia and fibula.

         The plaintiff commenced this action against the defendants on February 3, 2012. The complaint contained eight counts, each sounding in negligence. Count one invoked General Statutes § 52-557n and claimed that Benjamin's injuries were the result of negligence by the town. The next three counts of the complaint, which also were brought on behalf of Benjamin, alleged negligence on the part of Spooner, Delehanty, and the board, respectively. The remaining four counts, one against each of the defendants, were brought by the plaintiff in her individual capacity to recover funds spent caring for Benjamin's injuries andon his recovery. The gravamen of the plaintiff's negligence claims was that rules, policies, or procedures of the school district required students to wear shin guards when playing soccer, but no shin guards were provided to Benjamin on the day he was injured.[3]

         The defendants filed an answer to the complaint on November 20, 2012, denying the negligence allegations. They also asserted by way of a special defense that the town and its agents were immune from liability for any alleged negligence on the basis of governmental immunity, citing § 52-557n (a) (2) (B). The plaintiff filed a reply denying all allegations of the special defense.

         On August 1, 2014, the defendants filed a motion for summary judgment. The defendants claimed that they were entitled to judgment on all counts of the complaint as a matter of law because of the discretionary act immunity afforded by § 52-557n (a) (2) (B), and because the plaintiff could not show that Benjamin was an identifiable person subject to imminent harm, as required to fall within the relevant exception to governmental immunity. In support of the motion for summary ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.