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McCarroll v. Town of Easthaven

Court of Appeals of Connecticut

March 27, 2018

MASON MCCARROLL ET AL.
v.
TOWN OF EASTHAVEN

          Argued November 27, 2017

         Procedural History

         Action to recover damages for the defendant's alleged negligence, brought to the Superior Court in the judicial district of New Haven, where the court, B. Fischer, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiffs appealed to this court. Affirmed.

          David N. Rosen, with whom, on the brief, was Alexander Taubes, for the appellants (plaintiffs).

          Rosalie D. Louis, with whom, on the brief, was Hugh F. Keefe, for the appellee (defendant).

          Lavine, Keller and Pellegrino, Js.

          OPINION

          LAVINE, J.

         This personal injury action concerns the injuries the minor plaintiff, Mason McCarroll (child), sustained when he fell from a playscape he was climbing on at an elementary school playground.[1] The plaintiffs appeal from the judgment of the trial court rendered when it granted the motion for summary judgment filed by the defendant, the town of East Haven.[2] On appeal, the plaintiffs claim that, in granting the defendant's motion for summary judgment, the court improperly concluded that their claims were barred by the doctrine of governmental immunity.[3] We affirm the judgment of the trial court.

         The following facts are relevant to the plaintiffs' claim on appeal. On April 12, 2012, the child was a kindergarten student at D.C. Moore Elementary School (school), a public school in East Haven. There was a wooden playscape on the school's playground. During recess on the date in question, the child was attempting to climb the ladder of the playscape when he fell and sustained injuries to his left arm.

         The plaintiffs commenced the present action on January 17, 2014. In their amended complaint of September 22, 2015, the plaintiffs alleged that the playscape consisted of a tower, several slides, a wooden ramp, and a five rung ladder, [4] and that it was intended for use by students at the school. They also alleged that the playscape was in a decrepit condition and that the protective mulch underneath the playscape had eroded, resulting in a hard and uneven dirt surface. The ladder was in a similar decrepit condition in that the first four metal rungs were bolted to three parallel wooden posts and were in the shape of a ‘‘W'' but the fifth rung was missing a bolt and was in the shape of a ‘‘U.'' Moreover, they alleged that the wood at the base of the ‘‘U'' had begun to wear away due to friction caused by the chain, that school officials and employees were aware of the playscape's dilapidated condition, and that school employees were present at all times while students were playing on the playscape.

         The plaintiffs also alleged that when the child, who was climbing the ladder, reached the fifth rung, he slipped, fell to the ground, and sustained serious injuries to his left arm. The plaintiffs alleged that the defendant is liable for the child's injuries and damages pursuant to General Statutes § 52-557n[5] due to the negligence of the school officials.[6] In its memorandum of law in support of its motion for summary judgment, the defendant pointed out that the plaintiffs failed to allege that the acts and omissions of which they complained were ministerial in nature.

         On September 11, 2014, the defendant filed an amended answer to the plaintiffs' January 27, 2014 complaint and four special defenses. The defendant alleged, among other special defenses, that it was ‘‘immune from suit'' pursuant to the doctrine of governmental immunity.[7] The plaintiffs denied the defendant's special defenses. On March 17, 2015, the defendant filed a motion for summary judgment, along with supporting exhibits and affidavits, claiming that there were no genuine issues of material fact (1) that it owed no duty to the child to maintain the facilities at the school and, in the alternative, (2) that the plaintiffs' negligence claims were barred by the doctrine of governmental immunity pursuant to § 52-557n in that the acts complained of were discretionary in nature and that no exception to the immunity doctrine applied.[8] The plaintiffs filed an objection to the motion for summary judgment with a supporting memorandum of law and exhibits.

         The trial court heard the motion at short calendar on February 15, 2016, and granted the motion for summary judgment in a memorandum of decision issued on May 9, 2016. The court found that the defendant owed the plaintiffs a duty of care because the board of education was the defendant's agent despite the fact that the plaintiffs had failed to cite the board of education as a defendant.[9] Nonetheless, the court concluded that the inspection and repair of the playscape was a discretionary act; see General Statutes § 10-220 (a); and that the defendant was not liable to the plaintiffs for the child's injuries because the identifiable victim-imminent harm exception to the doctrine of governmental immunity was inapplicable. The court, therefore, granted the motion for summary judgment in favor of the defendant. The plaintiffs appealed.

         We first set forth the standard of review by which we consider appeals from summary judgments. ‘‘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. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for ...


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