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Lewis v. Town of Newtown

Appellate Court of Connecticut

July 16, 2019

Scarlett LEWIS, Administratrix (Estate of Jesse Lewis), et al.

         Argued April 17, 2019

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         Appeal from the Superior Court in the judicial district of Danbury, where the action was withdrawn as against the defendant Sandy Hook Elementary School; thereafter, the court, Wilson, J.

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

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

         Lavine, Elgo and Bishop, Js.


         BISHOP, J.

         [191 Conn.App. 216] This case arises from the horrific and tragic events that occurred on December 14, 2012, at the Sandy Hook Elementary School (school) in Newtown.[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

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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 [191 Conn.App. 217] trial court in favor of the defendants, the town of Newtown and the Board of Education of the Town of Newtown, 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 [191 Conn.App. 218] 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

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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 [191 Conn.App. 219] 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 [191 Conn.App. 220] 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 ...

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