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Teodoro v. City of Bristol

Court of Appeals of Connecticut

August 28, 2018

DAWN TEODORO
v.
CITY OF BRISTOL ET AL.

          Argued October 16, 2017

         Procedural History

         Action to recover damages for the defendants' alleged negligence, and for other relief, brought to the Superior Court in judicial district of New Britain, where the court, Young, J., granted the defendants' motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Reversed; further proceedings.

          Daniel P. Scholfield, with whom, on the brief, was Steven J. Errante, for the appellant (plaintiff).

          Thomas R. Gerarde, with whom was Ondi A. Smith, for the appellees (defendants).

          DiPentima, C. J., and Sheldon and Norcott, Js.

          OPINION

          SHELDON, J.

         The plaintiff, Dawn Teodoro, as parent and next friend of her minor daughter, Brianna Teodoro, appeals from the summary judgment rendered by the trial court in favor of the defendants, the city of Bristol (city), the Bristol Board of Education (board) and board employee Sophia Bayne, in this action to recover damages for injuries suffered by Brianna due to the alleged negligence of the defendants in conducting and supervising a high school cheerleading practice. On appeal, the plaintiff challenges the court's decision to grant the defendants' motion for summary judgment without considering either (1) excerpts from the certified transcripts of two depositions taken in this case, one of Brianna and the other of Bayne, which the plaintiff had filed in opposition to the motion, or (2) the surreply brief with attached exhibits which she later filed, without the court's permission, in further opposition to the motion.

         The amended complaint and record demonstrated the following. The plaintiff alleged that the defendants negligently caused Brianna's injuries and resulting damages as follows. On the evening of January 7, 2013, while Brianna was practicing as a member of the junior varsity cheerleading squad of Bristol Eastern High School under the supervision of Bayne, her coach, she attempted, for the first time ever, to perform a cheer-leading stunt known as the ‘‘ladder stunt.'' To perform that stunt, two cheerleaders acting as ‘‘bases, '' flanked by front and back spotters to protect the participants' safety, lift a third cheerleader acting as the ‘‘flyer'' into the air, where they hold her as she transitions from half to full extension. Practicing as the ‘‘flyer'' with her stunt group on that evening, Brianna had difficulty performing the ladder stunt, twice attempting but failing to complete it. Although Bayne was aware of Brianna's difficulty in performing the stunt and of her resulting apprehensiveness about trying to perform it again, she instructed Brianna to ‘‘try it one more time, '' but then walked away to assist other cheerleaders without assisting Brianna to perform the stunt a third time or giving her further instruction as to how to do so correctly. When Brianna thereafter complied with Bayne's instructions by trying to perform the stunt again, she fell to the floor after being lifted into the air and transitioning from half to full extension, causing her to break several bones in her arm. The plaintiff alleged that Bayne's conduct in supervising Brianna was negligent because, inter alia, she encouraged Brianna to perform the stunt again despite Brianna's uncertainty and apprehensiveness, when she knew or should have known that it was unsafe and unreasonable to do so; failed to give Brianna hands-on assistance in performing the stunt again or proper instruction as to how to perform it correctly when it should have been apparent that her failure to do so would likely subject Brianna to imminent harm; and failed to provide sufficient spotters to catch Brianna if she fell. The defendants answered the plaintiff's amended complaint by denying all allegations of negligence against them and interposing the special defense of qualified governmental immunity.

         On October 9, 2015, the defendants filed a motion for summary judgment on the ground of qualified governmental immunity, together with a supporting memorandum of law and several exhibits, including an affidavit from Christopher Cassin, the board's supervisor of athletics, physical education and health; an affidavit from Bayne; and a memorandum of decision granting a defense motion for summary judgment on the ground of qualified governmental immunity in another Superior Court action in which the plaintiff, an injured cheerleader, sought to recover damages from municipal defendants for injuries she claimed to have suffered due to their negligence in conducting a high school cheerleading practice. On the basis of those submissions, the defendants argued that there was no genuine issue of material fact that they were entitled to prevail on their special defense of qualified governmental immunity, and thus to the entry of judgment in their favor on the plaintiff's claims of negligence, because the conduct and supervision of cheerleading practices is a governmental activity that requires the exercise of discretion. They further argued that there was no evidence that their alleged negligence in exercising such discretion in this case came within an exception to qualified governmental immunity by subjecting Brianna, as an identifiable member of a narrowly defined class of foreseeable victims, to a risk of imminent harm.

         On December 11, 2015, the plaintiff filed a memorandum of law in opposition to the defendants' motion along with several attached exhibits, including her second amended complaint; excerpts from the original certified transcripts of Brianna's and Bayne's depositions in this case; the plaintiff's disclosure of Dr. Gerald S. George as an expert witness on the subjects of biomechanics and cheerleading safety; an excerpt from the National Federation of State High School Associations 2012-13 Spirit Rules Book; and an excerpt from the Bristol Public Schools Coaching Handbook.[1] On the basis of those materials, the plaintiff claimed that the defendants' motion should be denied because the evidence she had submitted raised two genuine issues of material fact as to the viability of the defendants' special defense of qualified governmental immunity: first, whether the conduct and supervision of cheerleading practices involves the performance of ministerial, rather than discretionary, duties, as to which the special defense of qualified governmental immunity is unavailable as a matter of law; and second, even if the conduct and supervision of cheerleading practices involves the performance of discretionary duties, whether Bayne's alleged negligence in performing such duties in this case, as evidenced by Brianna's and Bayne's deposition testimony, fell within an exception to qualified governmental immunity because Brianna was subjected to a risk of imminent harm.

         Thereafter, on March 2, 2016, the defendants filed a reply memorandum in further support of their motion. Attached to the reply memorandum were two additional exhibits: a supplemental affidavit from Cassin, and an additional excerpt from the original certified transcript of Brianna's deposition. On the basis of Brianna's deposition testimony, so supplemented, the defendants argued, inter alia, that before Brianna fell, she did not object to performing the ladder stunt again or tell Bayne of her fear of so doing, and thus Bayne had no notice that by instructing Brianna to try the stunt one more time, she was subjecting her to a risk of imminent harm. Both the plaintiff and the defendants included, as parts of each deposition excerpt they filed in connection with the defendants' motion, the cover page of the original deposition transcript from which the excerpt in question was taken, the page of the transcript on which the court reporter certified the truth and accuracy of the entire deposition, as he transcribed it, and the page of the transcript on which the deponent swore before the court reporter, who took her oath in his capacity as a notary public, that she had read the entire transcript of the deposition and certified to its truth and accuracy, as transcribed or as later corrected on the attached errata sheet.[2] Neither party objected in writing to the other party's submission of or reliance upon any such deposition excerpt, so authenticated, as evidence in support of or in opposition to the motion, or suggested that any corrections had ever been made to the transcript on an errata sheet.

         On March 4, 2017, after the previously described memoranda and materials were filed, the plaintiff, without the permission of the trial court, filed a surreply brief in further opposition to the motion. Attached to that brief were several additional exhibits, including an affidavit from her expert, Dr. George; a document listing the ‘‘highlights'' of Dr. George's professional resume; and a copy of the bylaws of the Connecticut Student Activities Conference. These additional exhibits bore only upon the plaintiff's claim that the defendants were not entitled to governmental immunity because their duties in conducting and supervising cheerleading practices were ministerial, rather than discretionary, in nature.

         The court heard oral argument on the defendants' motion on March 7, 2016. During the argument, when the defendants' counsel began to present argument in support of the motion based upon Brianna's certified deposition testimony, the court advised the parties that it considered the deposition excerpts they had submitted to be unauthenticated, and thus to be inadmissible as evidence on the motion unless all parties consented, because such excerpts were neither separately certified as true and accurate excerpts from the original certified deposition transcripts, nor accompanied by affidavits from persons with personal knowledge of the contents of such original certified transcripts, averring that the excerpts were true and accurate excerpts from those transcripts. When the defendants' counsel was informed by the court that she could, but need not, consent to the use of the deposition excerpts as evidence in support of or in opposition to the motion, she promptly reversed course, declining to offer her consent, although the deposition excerpt she had submitted and relied upon was presented and authenticated in the same manner as the excerpts submitted by the plaintiff. It would be ‘‘fair, '' she suggested, if no such deposition excerpt from either party was considered in deciding the motion. Accordingly, the court announced that, in the absence of an agreement among the parties, none of the deposition excerpts they had filed would be considered in deciding the motion.

         When counsel for the plaintiff was so informed of the court's decision not to consider the deposition excerpts she had filed in opposition to the defendants' motion, she promptly asked the court for permission to supply it with a sworn affidavit averring that the excerpts she had submitted were true and accurate excerpts from Brianna's and Bayne's original certified deposition transcripts. The court twice refused this request despite observing that no party had suggested that any such excerpt was inaccurate in any way.

         The court also advised the parties during the argument that the plaintiff's surreply brief and attached exhibits had been filed improperly, without the court's permission, in violation of Practice Book § 11-10 (c). Even so, it granted the defendants permission to file their own surreply brief in response to the plaintiff's surreply brief in case it should ultimately decide to consider such briefs and exhibits in deciding the motion. One week later, on March 14, 2016, the defendants filed their own surreply brief without additional exhibits.

         By an order dated April 18, 2016, the court granted the defendants' motion for summary judgment. The court ruled, on the basis of the evidence it found to be admissible, that the defendants were entitled to governmental immunity because there was no genuine issue of material fact that (1) cheerleading is a student athletic activity authorized by the board, and thus Bayne's conduct in supervising that activity was public in nature;[3] (2) Bayne's duties while engaging in such supervisory activity were discretionary, rather than ministerial, in nature; and (3) Bayne's alleged negligence in performing such discretionary duties on the evening of Brianna's fall did not come within an exception to qualified governmental immunity by subjecting Brianna, as an identifiable member of a narrowly defined class of foreseeable victims, to a risk of imminent harm.[4] In rendering summary judgment in favor of the defendants as aforesaid, the court did not consider any of the deposition excerpts that the parties had filed in connection with the defendants' motion on the previously stated ground that they were not authenticated properly. Nor did the court consider either party's surreply brief or the exhibits attached to the plaintiff's surreply brief because, as it had noted during the argument, the plaintiff's surreply brief and exhibits had been filed without the court's permission.

         On appeal, the plaintiff claims that the trial court erred in granting the defendants' motion for summary judgment (1) without considering the deposition transcript excerpts she had filed in opposition to the motion, and (2) without considering her surreply brief and attached exhibits. We agree with the plaintiff that the trial court erred in not considering the deposition excerpts she offered in opposition to the motion on the ground that they were not authenticated properly. We disagree, however, that the trial court abused its discretion in not considering the plaintiff's surreply brief and attached exhibits. We therefore reverse the summary judgment rendered by the trial court in favor of the defendants, and remand this case for further consideration of the defendants' motion in accordance with this opinion, and for such other proceedings as may thereafter be appropriate, according to law.

         ‘‘Before addressing the plaintiff's claims in greater detail, we note that . . . [b]ecause the present case was disposed of by way of summary judgment, we first address the appropriate framework for appellate review of a summary judgment determination.'' (Internal quotation marks omitted.) Grady v.Somers, 294 Conn. 324, 331, 984 A.2d 684 (2009). The purpose of summary judgment procedure is to provide a vehicle for ending litigation short of trial where the admissible evidence available to the parties, as presented to the court, establishes that the moving party is entitled to judgment as a matter of law because there is no genuine issue as to one or more material facts upon which his right to judgment depends. See Practice Book§ 17-49 (summary judgment ‘‘shall be ...


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