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Lewis v. Town of Newtown

Court of Appeals of Connecticut

July 16, 2019


          Argued April 17, 2019

         Procedural History

         Action to recover damages for the deaths of the plaintiffs' decedents resulting from the defendants' alleged negligence, and for other relief, brought to the Superior Court in the judicial district of Danbury, where the action was withdrawn as against the defendant Sandy Hook Elementary School; thereafter, the court, Wilson, J., granted the motion for summary judgment filed by the named defendant et al. and rendered judgment thereon, from which the plaintiffs appealed to this court. Affirmed.

          Devin W. Janosov, with whom was Donald A. Papcsy, for the appellants (plaintiffs).

          Charles A. Deluca, with whom were John W. Cannavino, Jr., Thomas S. Lambert and Monte E. Frank, for the appellees (named defendant et al.).

          Lavine, Elgo and Bishop, Js.


          BISHOP, J.

         This case arises from the horrific and tragic events that occurred on December 14, 2012, at the Sandy Hook Elementary School (school) in New-town.[1] On that day, at approximately 9:35 a.m., Adam Lanza, bearing an arsenal of weaponry, shot his way into the locked school building with a Bushmaster XM15-E2S semiautomatic rifle and, with gruesome resolve, fatally shot twenty first grade children and six staff members, and wounded two other staff members before taking his own life.[2] The plaintiffs, Scarlett Lewis, administratrix of the estate of Jesse Lewis, and Leonard Pozner, administrator of the estate of Noah Pozner, appeal from the summary judgment rendered by the trial court in favor of the defendants, the town of New-town and the Board of Education of the Town of New-town, on the ground of governmental immunity. On appeal, the plaintiffs claim that the trial court erred in rendering summary judgment by concluding that (1) the plaintiffs' third revised complaint did not contain allegations of negligence directed at the acts and omissions of the school faculty and staff during the shooting on December 14, 2012, but, rather, contained only allegations of negligence directed at the defendants before December 14, 2012; (2) the defendants' creation and implementation of school security guidelines were discretionary acts in nature; and (3) the identifiable person-imminent harm exception did not apply to the defendants' claim of immunity. We affirm the judgment of the trial court.

         The record reveals the following tragic facts and procedural history.[3] On December 14, 2012, at approximately 9:30 a.m., the doors to the school were locked as was the norm each morning once the school day began. At the same time, a meeting was taking place in room nine, a conference room adjacent to the principal's office and near an entranceway to the school. Attending this meeting were Principal Dawn Hochsprung, school psychologist Mary Joy Sherlach, a parent, and other staff. At approximately 9:35 a.m., Lanza blasted his way into the school through a plate glass window located next to the school doors. Hochsprung and Sherlach immediately ran from the conference room into the hallway, where they instantly were shot and killed by Lanza. Natalie Hammond, who had also left the conference room to investigate and was trailing Hochsprung and Sherlach, was shot and injured, but was able to crawl back into the conference room. After shooting Hochsprung, Sherlach, and Hammond, Lanza proceeded down a hallway while firing his rifle, striking and wounding another staff member. Lanza then apparently entered and exited the main office without shooting anyone, and proceeded down another hallway to classrooms eight and ten. While in these classrooms, Lanza shot and killed four adults and twenty first-grade students. The plaintiffs' children, Jesse and Noah, were two of the students killed. Lanza then took his own life at approximately 9:40 a.m.

         By summons and complaint served January 9, 2015, [4]the plaintiffs brought this action alleging acts of negligence on the part of the defendants, pursuant to General Statutes § 52-557n (a) (1), [5] which they claimed were substantial factors in contributing to the deaths of their children. In response, the defendants filed an answer and special defenses, in which they asserted that (1) the plaintiffs' claims were barred by the doctrine of governmental immunity, pursuant to § 52-557n (a) (2);[6](2) as a matter of undisputed fact, their acts or failures to act were not the proximate cause of the children's deaths; and (3) they could not be held liable for the criminal acts of an individual who was not an agent or employee of either defendant.

         On June 30, 2017, following a period of discovery, the defendants filed a motion for summary judgment on the grounds that (1) there was no genuine issue of material fact regarding the defendants' alleged negligence; (2) the defendants were entitled to the defense of governmental immunity pursuant to § 52-557n (a) (2); (3) Lanza's intervening criminal act destroyed any claim of proximate cause regarding any of the alleged failings of the defendants; and (4) the plaintiffs had failed to produce any expert testimony in support of their claims. In response, the plaintiffs filed a memorandum of law in opposition to the defendants' motion for summary judgment, arguing that (1) the defendants had failed to present evidence adequate to satisfy their burden on a motion for summary judgment; (2) the actions of the school faculty and staff present in the school on December 14, 2012, were not discretionary in nature but, rather, were ministerial duties prescribed by the school security guidelines, in place at that time; (3) if the duties of the faculty and staff present in the school were not ministerial but were, instead, discretionary, the conduct of Lanza in blasting his way into the school presented an imminent danger to all present in the school, and the failure of the faculty and staff in the school to follow the prescriptions set forth in the school security guidelines constituted negligence; (4) Lanza's conduct was not an intervening criminal action because the purpose of the school security guidelines was to respond to outside threats such as those posed by Lanza; and (5) the plaintiffs would address their failure to produce expert testimony by demonstrating that the expert disclosed by the defendants had no knowledge in regard to the issues presented by this case.

         On May 7, 2018, after briefing and argument by counsel, the court issued a memorandum of decision granting the defendants' motion for summary judgment on the ground of governmental immunity. Finding that the complaint made no specific allegations against any of the faculty or staff present in the school building, the court nevertheless accorded the parties a substantive analysis of this claim and determined that the school security guidelines did not impose a ministerial duty on those individuals. Rather, the court determined that the guidelines, by their own language, imposed discretionary responsibilities on the named defendants and faculty and staff. The court concluded, as well, that the acts and omissions alleged in the plaintiffs' complaint concerning the named defendants were discretionary and that no reasonable juror could find that the plaintiffs' children were subject to imminent harm at the time of the named defendants' allegedly negligent conduct in formulating, promulgating, and implementing the school security guidelines. Finally, the court concluded that even if it considered the plaintiffs' newly asserted claim in opposition to the motion for summary judgment, i.e., that the faculty and staff had a discretionary duty to implement the school security guidelines and that Lanza's initial blast into the school created an imminent risk to all present in the school building, no reasonable fact finder could find that the response of the faculty and staff to the chaotic situation that unfolded on that tragic day caused the catastrophic consequences that befell those present in the school. This appeal followed.

         Before addressing the plaintiffs' claims, we first set forth our oft-recited standard of review in regard to an appeal from a trial court's rendering of summary judgment. ‘‘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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist. . . . Our review of the decision to grant a motion for summary judgment is plenary. . . . We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record.'' (Internal quotation marks omitted.) Perez v. Metropolitan District Commission, 186 Conn.App. 466, 471-72, 200 A.3d 202 (2018).

         ‘‘[T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.'' (Internal quotation marks omitted.) Grignano v. Milford, 106 Conn.App. 648, 651, 943 A.2d 507 (2008).

         We next set forth the standard of review and relevant legal principles in regard to the doctrine of governmental immunity. ‘‘[T]he determination of whether a governmental or ministerial duty exists gives rise to a question of law . . . .'' Ventura v. East Haven, 330 Conn. 613, 634, 199 A.3d 1 (2019). Municipalities have traditionally been ‘‘immune from liability for [their] tortious acts at common law . . . . Governmental immunity may, however, be abrogated by statute. The state legislature possesses the authority to abrogate any governmental immunity that the common law gives to municipalities. . . . The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity. . . . Statutes that abrogate or modify governmental immunity are to be strictly construed. . . . This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.'' (Citations omitted; internal quotation marks omitted.) Tryon v. North Branford, 58 Conn.App. 702, 720, 755 A.2d 317 (2000).

         ‘‘Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents . . . . The section goes on to exclude liability for acts or omissions of any employee or agent which constitute criminal conduct, fraud, actual malice or willful misconduct and negligent acts that involve the exercise of judgment or discretion.'' (Citation omitted; emphasis added.) Id., 721.

         ‘‘Municipal officials 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. . . . Discretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.'' (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 614-15, 903 A.2d 191 (2006). With these principles in mind, we turn to the plaintiffs' specific claims.


         The plaintiffs first claim that the court erred in rendering summary judgment by concluding that their third revised complaint did not contain allegations of negligence directed at the acts and omissions of the school faculty and staff during the shooting on December 14, 2012, but, rather, contained only allegations of negligence directed at the acts and omissions of the defendants occurring before that date.

         Viewed in the light most favorable to the plaintiffs, the operative complaint sets forth the following claims as to the defendants. The plaintiffs allege that the defendants were ‘‘under a legal and ministerial duty to create, enforce, and abide by'' school security guidelines, ‘‘and to ensure student safety and well-being'' pursuant to General Statutes §§ 10-220, [7] 10-220f, [8] and 10-221, [9] and that their failure to do so subjected them to liability pursuant to § 52-557n. (Emphasis added.) In particular, the plaintiffs allege in paragraph 30 of counts one and three, and in paragraph 31 in counts two and four, that, inter alia, the defendants were negligent because they either left school faculty and staff in a position where they either could not adhere or failed to adhere to the mandatory school security guidelines by failing (1) to provide school faculty and staff with necessary information, equipment, and training to properly implement the school security guidelines, including training regarding the school lockdown and evacuation plan that faculty and staff were to follow should an intruder enter the school; (2) to provide school faculty and staff with doors that could be locked from the inside; (3) ...

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