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Osborn v. City of Waterbury

Court of Appeals of Connecticut

April 17, 2018

TATAYANA OSBORN ET AL.
v.
CITY OF WATERBURY ET AL.

          Argued February 5, 2018

         Procedural History

         Action to recover damages for personal injuries sustained by the named plaintiff as a result of the defendants' alleged negligence, and for other relief, brought to the Superior Court in the judicial district of Water-bury, where the action as withdrawn as to the defendants Charles Stango et al.; thereafter, the matter was tried to the court, Hon. Barbara J. Sheedy, judge trial referee; judgment for the plaintiffs, from which the named defendant et al. appealed to this court; subsequently, the court, Hon. Barbara J. Sheedy, judge trial referee, issued an articulation of its decision, and the defendant Danielle Avalos et al. withdrew their appeal. Reversed; judgment directed.

          Daniel J. Foster, corporation counsel, for the appellants (named defendant et al.)

          Richard M. Franchi, for the appellees (plaintiffs).

          Lavine, Prescott and Harper, Js.

          OPINION

          LAVINE, J.

         This personal injury action concerns the injuries the minor plaintiff, Tatayana Osborn (child), [1]sustained during a lunchtime recess at her elementary school. The defendants, the city of Waterbury (city) and the Waterbury Board of Education (board), appeal from the judgment of the trial court rendered in favor of the plaintiffs.[2] On appeal, the defendants claim that the trial court improperly (1) rejected their special defense of governmental immunity for discretionary acts, (2) concluded that the plaintiffs' injuries were caused when an inadequate number of adults were assigned to supervise up to 400 students when there was evidence that there were no more than fifty students on the playground, (3) found in the absence of expert testimony that one student intern and three or four staff members were insufficient to control as many as 400 students on the playground, and (4) awarded damages intended to encourage continued therapy and occupational training for the child in the absence of evidence that she would need such services in the future. We agree with the defendants' third claim and conclude, as a matter of law, that without expert testimony, the court could not properly have found that the defendants breached their duty of care to the child because there was an inadequate number of adults on the playground to supervise the students at the time the child was injured. We, therefore, reverse the judgment of the trial court.[3]

         The following facts are relevant to our resolution of the defendants' appeal. On April 25, 2012, the child was an elementary school student when she was assaulted by other students while they were on the playground during the lunchtime recess. As a result of the assault, the child sustained a cut to her face that required sutures to repair and resulted in scarring. The plaintiffs commenced the present action against the city, the board, the president of the board, and several members of the school staff. See footnote 2 of this opinion. The plaintiffs alleged, among other things, that certain members of the school staff were careless and negligent in failing to supervise the students on the playground and protect the child from injury. As to the city, the plaintiffs alleged, in part, that the child was an identifiable victim and that the city owed her a duty to protect her safety on school premises. As to the board, the plaintiffs alleged, in part, that the board was responsible for establishing and enforcing policies regarding the education and safety of students such as the child by hiring and training school staff to protect the students' safety. As a result of the defendants' claimed breach of duty, the child suffered lacerations to her nose and cheek, which resulted in scarring, among other things. The defendants denied the allegations of negligence and asserted three special defenses.[4]

         The parties tried the case to the court. Following the presentation of evidence, the court issued a memorandum of decision in which it found that the child was a fifth grade student at Sprague Elementary School in Waterbury when she was assaulted by two or more students on the playground. The playground was surrounded by brick walls and fencing, and following lunch, students occupied the area for play and exercise. More specifically, the child was surrounded by a circle of students who physically assaulted her and pushed her into a stone wall, causing injuries to her nose and cheek with resulting facial scarring. The child experienced post-traumatic headaches for a sustained period of time, but the most serious effect of this schoolyard assault was its lingering effect on the child's emerging personality and self-image.

         The court also found that Danielle Avalos, a school paraprofessional, was assigned to monitor the students on the playground during recess. She was not provided with written documents that listed her duties during the lunchtime recess. Her two day professional development training occurred prior to the first day of school and focused on the forms of student bullying and the need to distinguish between bullying and students merely ‘‘picking on'' other students or otherwise being unkind to them. At the time of the incident, classroom teachers were on luncheon recess.[5] The court ‘‘conclude[d]'' that one student intern and three or four staff members were not sufficient to exercise control over as many as 400 students on the playground.

         With respect to the incident during which the child was injured, the court found that Avalos saw a student repeatedly punch the child in the face and push her into a wall. A precis prepared by the nursing division of the Waterbury Health Department referenced, ‘‘a large, deep cut on the [child's] left cheek'' and ‘‘a cut of lesser depth on the bridge of her nose.'' The court found that, at trial, it was clear the child was conscious of her facial scarring and that she considered that scarring to be her primary, perhaps only, sequela of the incident. The scars have diminished significantly. The court's review of the exhibits persuaded it that the most serious of her injuries was the effect the incident has had on the child's behavior. Since the incident, the child has demonstrated unpleasant, even rude, behavior in the presence of family and other caregivers. She acts out, and the suggestion is strong that she presents at school as unfriendly, perhaps even hostile. It was the court's view that the child would benefit from additional behavioral counseling. The court stated that its substantial award was intended to encourage continued therapy and occupational training for the child.

         Although the plaintiffs' counsel did not provide the court with a list of medical expenses incurred, the court reviewed all of the exhibits and concluded that the medical expenses were $7090.47. The court stated that, although no evidence was offered to support an ongoing need for continued therapy in any form, its award would permit the same should the family determine future treatment is desirable for the child. The court did not award damages for permanency in the absence of medical testimony in support of it. The court entered judgment in favor of the plaintiffs in the amount of $67, 090.47.

         The dispositive claim in this appeal is whether the court improperly concluded that ‘‘one . . . student intern and three . . . or four . . . staff members were not sufficient to exercise proper control over perhaps as many as . . . (400) students'' where there was no evidence that any defendant breached the pertinent standard of care. The defendants argue on appeal that the plaintiffs failed to produce any evidence, let alone expert testimony, that the pertinent standard of care required more than four or five adults to monitor students on the playground and therefore the court's finding that the defendants breached the standard of care was clearly ...


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