Posts tagged with "fairfield county attorneys"

Hostile Work Environments and the Faragher/Ellerth Defense

In a landmark case, the United States Supreme Court established the standard by which an employer could be held liable under Title VII of the Civil Rights Act of 1964 for the creation of a hostile work environment based on sexual harassment.  By way of background, Title VII is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion, and is applicable to employers with 15 or more employees.

Title VII Lawsuit

The reach of Title VII was brought to the Supreme Court’s attention in 1998, when it decided Faragher v. Boca Raton.  In that case, Faragher worked part time as a lifeguard between 1985 and 1990, finally resigning in 1990.[1] In 1992, she brought an action against her immediate supervisors and the city and asserted claims under Title VII.

In her suit, Faragher alleged that her supervisors created a sexually hostile work environment by making lewd remarks and subjecting Faragher and other female lifeguards to unwanted and offensive touching.[2] The district court, considering evidence of a pattern of inappropriate conduct engaged in by Faragher’s supervisors, concluded that the conduct was “discriminatory harassment sufficiently serious to alter the conditions of Faragher’s employment and constitute an abusive working environment.”

The Court based its finding on three principles: “(1) the harassment was pervasive enough to support an inference that the City had ‘knowledge, or constructive knowledge’ of it; (2) the City was liable under traditional agency principles because [her supervisors] were acting as its agents when they committed the harassing acts; (3) Gordon’s knowledge of the harassment, combined with his inaction, ‘provides a further basis for imputing liability on the City.’”  The district court awarded Faragher one dollar in nominal damages.[3]

Employer Liability Under Title VII

The Eleventh Circuit Court of Appeals reversed the judgment against the city on appeal, based on its finding that the City had no actual or constructive knowledge of the harassment.

The case reached the United States Supreme Court, which reversed the decision of the Eleventh Circuit and reinstated judgment in favor of Faragher.  In reaching its conclusion, the Supreme Court set down bright line rules to determine the liability of an employer under Title VII when its employees have created a hostile sexual work environment.

First noting that in order to weed out complaints attacking ordinary “tribulations of the workplace,” the Court noted that in the past it had “made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.”[4] Undertaking a detailed analysis, the Court ultimately held that “[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.  When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.”[5] 

Defending a Hostile Work Environment Claim

Essentially, the Court provided for an employer to raise a defense to a claim of a hostile work environment, if the employer can show that it exercised reasonable care to prevent and correct any sexually harassing behavior, and second, that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.  This created what has become known as the Faragher/Ellerth defense.

The Court, however, was unable to find any evidence tending to prove the affirmative defense.  Instead the Court found that Faragher’s supervisors “’were granted virtually unchecked authority’ over their subordinates.”[6]

With that, the Court established that employer can be liable for discriminatory behavior by supervisory personnel.

The Faragher/Ellerth Defense

The Second Circuit Court of Appeals had an opportunity to apply and interpret the “Faragher defense” recently in Gorzynski v. JetBlue Airways Corp., in 2010.  There, plaintiff Gorzynski brought an employment discrimination action against her employer JetBlue, alleging that she suffered a hostile work environment due to race, sex and age discrimination.  Pursuant to her employer’s sexual harassment policy, Gorzynski complained of the harassment to her supervisor, who also was her harasser.

The district court held that defendant JetBlue was entitled to the Faragher/Ellerth defense.  The Second Circuit found that while taken individually, the complained-of incidents may not have risen to the level of egregiousness necessary to prevail on a sexual harassment claim, “when taken together they do describe a work environment in which a jury could find that men, including Gorzynski’s supervisor, were able to – and did at will – comment inappropriately on women as sexual objects.”[7] 

Having found that Gorzynski established the existence of a hostile work environment, the Second Circuit next considered whether her employer could prove, by a preponderance of the evidence, the Faragher/Ellerth affirmative defense.  Rejecting a rigid reading of the Faragher rule, the Second Circuit held that “an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.”[8]

The Takeaway

The holding of this case applies to employees and employers in Connecticut, as the Second Circuit covers Connecticut, in addition to New York and Vermont.  The decision is important for several reasons, one of them being the notion that an employee’s sexual harassment claim will not fail for complaining of sexual harassment to the wrong person.  It also serves as a reminder to employees to become familiar with their company’s sexual harassment policy.

As the above cases demonstrate, sexual harassment claims can be complicated.  If you think that you have been subjected to a sexually hostile work environment, you should consult with an experienced employment attorney with the knowledge and resources to advocate on your behalf.  Please contact Joseph C. Maya, Esq., to set up an initial consultation, at 203-221-3100 or at JMaya@mayalaw.com.

 


[1] Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998).

[2] Id. at 781.

[3] Id. at 783.

[4] Id. at 788.

[5] Id. at 807.

[6] Id.

[7] Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010).

[8] Id. at 105.

A Summary of Sexual Harassment Workplace Policies in Connecticut

Unfortunately, many instances of sexual harassment in the workplace go unreported, due either to a fear of retaliation or uncertainty as to whether the conduct constituted sexual harassment.  Whatever the case, no employee should feel demeaned in any way while on the job.  The following provides an overview of the various laws and regulations concerning sexual harassment in Connecticut, and the various steps employers must take to ensure compliance with the law.

First and foremost, even before consulting an attorney, anyone with questions or concerns relating to human rights or discrimination issues in Connecticut should consult Connecticut’s Commission on Human Rights and Opportunities (CHRO), which states that its mission “is to eliminate discrimination through civil and human rights law enforcement and to establish equal opportunity and justice for all persons within the state through advocacy and education.”  The site provides valuable resources and links.  With regard to sexual harassment, the site contains a step-by-step guide on what to do if you feel you have been the victim of sexual harassment.

The Commission gets its authority from Connecticut General Statute § 46a-54, which grants the Commission the authority to “require an employer having three or more employees to post in a prominent and accessible location information concerning the illegality of sexual harassment and remedies available to victims of sexual harassment,” and second, “to require an employer having fifty or more employees to provide two hours of training and education to all supervisory employees [ . . . ].”  The statute further provides that the training and education “shall include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment.”

What is sexual harassment?

By way of reference, sexual harassment refers to “any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature.”

Employers with 3+ Employees

The information that is required of an employer having three or more employees includes, but is not limited to:

  • The statutory definition of sexual harassment and examples of different types of sexual harassment;
  • Notice that sexual harassment is prohibited by the State of Connecticut’s Discriminatory Employment Practices Law and Title VII of the 1964 Civil Rights Act;
  • The remedies available to a victim of sexual harassment, which can include but are not limited to:
    • Cease and desist orders;
    • Back pay;
    • Compensatory damages; and
    • Hiring, promotion or reinstatement;
  • Notice that the harasser may be subject to civil and/or criminal penalties;
  • The contact information for the CHRO;
  • A statement that Connecticut law requires that a formal written complaint be filed with the Commission within 180 days of the date when the alleged harassment occurred;
  • A large bold-faced notice stating, “Sexual Harassment is Illegal.”
    Employers with 50+ Employees

    An employer with fifty or more employees, in addition to the aforementioned requirements, must provide two hours of specialized sexual harassment training, which “shall be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.”  The statute provides a long list of the specific topics that an employer can and should include in the training.


    It is the hope that the above provides a concise, easy to understand summary of the policies that an employer must abide by when it comes to sexual harassment.  If you feel that you have been the victim of sexual harassment, or even if you are not sure, you should consult with an attorney experienced in employment law.  The attorneys at Maya Murphy, P.C. regularly represent employees throughout the Fairfield County and New York City regions, and are ready to advocate on your behalf.  If you have questions or want to schedule a consultation, please contact Joseph C. Maya, Esq. at 203-221-3100 or at JMaya@mayalaw.com.

    Former Student Brings Title IX Suit Against Wesleyan University

    In a case that has garnered national attention, a former Wesleyan University student filed a federal lawsuit in Connecticut’s district court against Wesleyan, alleging that the university failed to protect her from the dangers of the Beta Theta Pi fraternity.  The female says she was raped at the fraternity two years ago at a party.

    The Complaints

    The complaint charged Wesleyan with violating Title IX and alleged that the university violated the federal law by failing “to supervise, discipline, warn or take other corrective action” against the Mu Epsilon chapter of the Beta fraternity.  The complaint further stated that the university “did nothing to prevent, and was deliberately indifferent to, the harm caused to Jane Doe by the rape and outrageous sexual harassment and intimidation that followed her everywhere on campus.”

    Finally, the complaint alleged that the school “acted with deliberate indifference towards the rights of Jane Doe and other female students to a safe and secure education environment thus materially impairing Jane Doe’s ability to pursue her education at Wesleyan in violation of the requirements of Title IX.”[1]

    Her complaint seeks punitive damages for negligence, Title IX violations, and premises liability. Title IX is the federal gender-equality law, which states in part that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

    The legislation covers all educational and non-sport activities, such as school clubs and bands.  As such, the impact of the legislation is far-reaching and can touch many different aspects of one’s life.  If you feel that you or a loved one is being discriminated against on the basis of gender or sex, you should consult with an attorney experienced in the complicated field of employment law.  Our attorneys represent employees throughout Fairfield County, and are ready to advocate on your behalf.  Please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a consultation.

     


    [1] http://articles.courant.com/2012-10-05/news/hc-wesleyan-rape-lawsuit-1006-20121005_1_wesleyan-university-student-wesleyan-community-lawsuit.

    Student Records: How They are Kept and Who Has Access

    Since student records often contain confidential information such as grades, disciplinary history, and medical history, it is important for parents to understand what procedures school districts must follow when disclosing educational records either with or without parental consent. This section will provide parents with an overview of the Family Educational Rights and Privacy Act (FERPA), the primary federal legislation guiding schools in the disclosure of student educational records.

    The first part of this section will touch upon the rights of parents to access their own child’s educational records, including restrictions on this right, and the right of parents and students to amend their educational records. Beyond outlining the respective rights of parents and students to access their records, FERPA also touches upon the confidentiality to be afforded these educational records.

    While schools cannot generally disclose information within the student educational records without parental or student consent, parents should be aware that there are several exceptions to this rule, which we will also discuss. We will then conclude with a discussion on the general obligations of the school or district to notify parents and students about their rights under FERPA.

    What materials are considered “educational records?

    The U.S. Congress has defined “educational records” as records, files, documents, or any other materials that (1) contain information related to the student; and (2) are maintained by an educational institution or by a person acting on behalf of such an institution. While the definition is broad, the legislation also spells out what material is excluded from the definition. Under the Act, a record that teachers or other school employees maintain in their sole possession is not considered an educational record.

    In addition, records of law enforcement authorities in the school, records of a student who is eighteen years or older that are maintained by a physician, psychiatrist, psychologist, or records in connection with the treatment of a student, do not fall under the definition.

    What are the rights of parents and students to access educational records?

    Under FERPA, parents and students have the right to access their educational records, subject to a few limitations. Parents may exercise these rights while the student is a child, and the right extends to the student once he or she turns eighteen. Nevertheless, at this stage, parents still have the right to access the records without consent from the student provided the student is listed as a dependent on a parent’s federal income tax return. Under the statute, each school must develop appropriate procedures for granting requests by parents for educational records within a reasonable timeframe, not to exceed forty-five days.

    In addition, the U.S. Department of Education calls for schools to respond to reasonable requests for explanations or interpretations of the records also within a reasonable time. If circumstances prevent parents or eligible students from exercising their right to access the records, the school must either provide the parent or student with copies of the requested documents or make alternative arrangements for them to review the education records. Finally, the regulations prohibit the school from destroying records if there is an outstanding request for them.

    There are, however, two important limitations to this right of review. First, if information about another student is on the educational record, the parent can review only the portion of the record pertaining to his or her child. Second, while non-custodial parents generally can review their child’s records without consent from the student or other parent, a school must deny such a request if there is a court order, state statute, or legally binding document explicitly revoking the right.

    How do parents and students request to amend students’ educational records?

    If a parent believes that his or her child’s educational records are inaccurate, misleading, or in violation of students’ rights to privacy, the parent may request that the school amend the record. The school must decide whether to move forward with this request within a reasonable time. If it opts not to carry out the request, then it has to inform the parent or eligible student of its decision and his or her right to an informal hearing to contest the decision.

    Informal Hearing with the School

    The DOE has set forth minimum requirements for the conduct of such a hearing. The school must hold the hearing within a reasonable time after the request and notify the parent or student of the date, time, and place, reasonably in advance of the proceeding. While an individual from an educational agency or institution may preside over the hearing, he or she must not have a direct interest in the outcome of the case.

    In terms of the hearing itself, DOE simply requires that the contesting party must have a full and fair opportunity to present evidence relevant to the issue at hand. The regulations provide that parents or eligible students have the right to be represented by an individual at his or her expense, including an attorney. As with other administrative proceedings, the hearing officer can only consider evidence that was presented during the hearing.

    If the hearing officer decides in favor of the parent or eligible student, the school must amend the record accordingly, and inform the requesting party of this decision. On the other hand, if the hearing officer decides that the educational record is not inaccurate or misleading, parents have the right to put forth a statement in the record commenting on the contested information and why he or she disagrees with the decision of the school. The school has to keep the statement in the record as long as the record is maintained and must disclose the statement whenever it discloses the record to which the statement refers to.

    When can a school disclose information regarding your child’s educational records?

    Generally, schools cannot disclose to a third party information about the student from the educational records without signed and written consent from the parent or the eligible student. The signed and dated written consent may include a signature in electronic form provided it identifies the person giving the electronic consent and indicates his or her approval of the information contained within the consent. The written consent must specify which records are to be disclosed, state the reason for the disclosure, and identify the individual or organization to which the disclosure is being made. The school is obligated upon request to provide parents or eligible students with copies of the records that are to be disclosed.

    When can a school disclose information without parental or student consent?

    While FERPA provides extensive confidentiality protections for parents and students with respect to their educational records, there are several exceptions permitting the school to disclose the records without prior consent. For example, the school can disclose information to school officials having a legitimate educational interest in reviewing the record. School officials having such an educational interest include teachers and school employees that work directly with the student as well as attorneys for the school district.

    The right to disclosure may also extend to outside consultants, contractors, volunteers, and other parties that have contracted with the school provided they (1) perform a service for which the school would otherwise use employees; (2) are under the direct control of the school in the use and review of the records; and (3) will not disclose the information to an unauthorized party. Regardless of the source of the request, the school must take appropriate measures to ensure that these parties review only those records in which they have a legitimate educational interest.

    The school does not need consent when it is disclosing information to state and local officials who are using the records to conduct audits, evaluations, and compliance reviews of specific educational programs. The school can also disclose to organizations that are contracting with the school to develop and administer predictive tests, administer aid programs and improve classroom instruction. Under the statute, the term “organizations” includes federal, state and local agencies, and independent organizations.

    Record Disclosure Restrictions

    Congress has nevertheless imposed some restrictions to ensure these organizations are properly using the record. First, the written agreement between the school and the organization must specify the purpose, scope and duration of the studies, the information that is to be disclosed and contain assurances from the organization that it uses the records only for its intended purpose. Second, when conducting the studies, only representatives of the organization that have a legitimate interest in the information can access the records. Finally, once the organization completes the study, it has to destroy or return to the school all personally identifiable information.

    To ensure that schools comply with these requirements, the U.S. Department of Education has the authority to prohibit an institution from disclosing information to a third-party organization for five years if it makes a determination that the school violated the provisions outlined above.

    In the Case of a Student Transfer

    If a student is intending to enroll or transfer to another school in a different district, the “receiving school” may access the educational records from the “sending school” without parental or student consent unless there is a board policy prohibiting the transfer of records.

    However, under Connecticut law, the receiving school must send written notification to the sending school at the time the student enrolls there. The sending school then has ten days after the written notification to send all the student’s educational records to the receiving school. If the sending school does disclose confidential information under these circumstances, it must make a reasonable attempt to notify the parent or the student at his or her last known address.

    However, schools do not have to carry out this notification task if (1) the parent or student initiated the disclosure, or (2) the school specifies a policy in its annual notification of forwarding a student’s records to the receiving school when that student enrolls there. In any event, the school has to provide copies of the disclosed records to the parent or student and an opportunity for a hearing if he or she wants to amend the records.

    Disclosing Information to State and Local Officials

    School officials may disclose information pursuant to a court order or subpoena. In doing so, the school has to make reasonable attempts to notify the parent or student about the order or subpoena in advance of the disclosure, so the parent or student has an opportunity to challenge the subpoena or court order. On a related note, if the school is defending or pursuing a legal action by or against a parent, it can disclose relevant student records without a court order, subpoena or prior parental or student consent.

    Similarly, the school can disclose student information to state and local authorities without written consent if the disclosure is related to the juvenile justice system’s ability to serve that student and a particular state statute permits such an action. If the pertinent state statute was adopted after November 19, 1974, the authorities who are requesting the student records must certify in writing to the school that they will not disclose the information to any party that is not authorized by state law.

    In the Case of an Emergency

    The school can also disclose confidential information in emergencies if the information is necessary to protect the health and safety of the student or other individuals. Parents should be aware that the school has the statutory authority to disclose confidential student records to teachers and school officials within the school and at other schools if they have a legitimate interest in the behavior of the student. The statute also permits the school to disclose information to any other individual whose knowledge of the information is necessary to protect the student and any other individuals.

    Directory Information Providing Public Notice

    Finally, the school can disclose “directory information” without consent if it has provided public notice to parents or eligible students attending the school. “Directory information” means any information in an educational record of the student that would not generally be harmful or an invasion of privacy if disclosed. Examples of directory information include the student’s name, address, phone listing, e-mail address, photograph, date and place of birth, major field of study, grade level, enrollment status, dates of attendance, participation in activities and sports, degrees, honors and awards received, etc.

    DOE has outlined requirements for what type of information must be in the public notice. First, the notice has to contain the types of personally identifiable information that the school has designated as directory information. Second, the school has to spell out the parent’s or the eligible student’s right to refuse to let the school disclose such information and the period of time within which he or she has to notify the school.

    Our education law firm in Westport Connecticut serves clients with expulsion, discrimination, and general education law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best education law attorneys in CT on staff that can help with your Connecticut or New York education issues today.

    If you have any questions or would like to speak to an education law attorney about a pressing matter, please don’t hesitate to call our office at (203) 221-3100. We offer free consultations to all new clients.

    Cyberbullying and the Fourth Amendment Right to Privacy

    The American Civil Liberties Union (ACLU) has swiftly responded to the Fairfield school board’s proposed amendments to its internet use policy, contending that the proposed policy amendments will run afoul of the Fourth Amendment’s prohibition against unreasonable searches and seizures.

    Internet Use Policy in Fairfield

    The Fairfield School Board, under the direction of Superintendent David Title, has outlined changes to the type of content that students can access while at school.  While bans on viewing pornography and other illegal or explicit content have always been enforceable, the ACLU has taken issue with the amendment’s policy that would allow school administrators to look through students’ personal computers and devices to ensure that not only are students not looking at illegal or explicit content, but that they are not harassing or bullying other students online.  Such a policy, of course, invokes the right to privacy guaranteed by the Fourth Amendment.

    Specifically, the ACLU has taken issue with a particular provision of the policy that reads, “Digital storage and electronic devices used for school purposes, whether district or personally owned, will be treated as district technology resources.  Therefore, all students must be aware that they should not have any expectation of personal privacy in the use of these resources.”  The provision does not distinguish between personally owned computers or devices, and school-owned devices.  So long as the device is used for “school purposes,” it would fall under the umbrella of this policy.

    The school board met again last night, and was tasked with striking a better balance between a student’s right to privacy under the Fourth Amendment and the need for schools to ensure that students are not viewing illegal content or harassing other students using devices meant for school purposes. The results of that meeting have yet to be released.

    If you have questions relating to your child’s rights when it comes to personal devices used in school settings, or about education or bullying law in general, contact Joseph C. Maya, Esq., in our Westport office, at 203-221-3100, or at JMaya@mayalaw.com.


    Sources:

    http://fairfield.patch.com/articles/school-board-rethinks-changes-to-student-internet-use-policy

    www.fairfieldcitizenonline.com/news/article/ACLU-Schools-Internet-policy-changes-would-3893322.php

    http://www.fairfieldcitizenonline.com/news/article/ACLU-asks-school-board-to-reject-amendment-to-3914671.php

    http://fairfield.dailyvoice.com/schools/fairfield-schools-web-policy-faces-aclu-challenge

    Student’s Negligence Action Against School

    Student’s Negligence Action Against School, City of Stamford Survives Motion for Summary Judgment
    Case Background

    Jesse was a twenty-year-old special education student attending high school in Stamford. She repeatedly informed teachers and school officials about the unwanted romantic advances made by her classmate, Jonathan, but no action was ever taken. On February 28, 2005, Jesse asked to use the restroom located in the special education classroom; she was then sexually assaulted by Jonathan. Both students were sent to the office of the special education coordinator, and Jesse explained what occurred. Despite this knowledge, school officials permitted the two to ride on the same school bus home, during which Jesse was teased and called a liar by Jonathan.

    Various teachers and staff, the Board of Education, and even the City of Stamford were later sued in a negligence action filed by Jesse. She contended that “the defendants were aware of [Jonathan’s behavior], but they failed to take appropriate measures to protect [her] from the sexual assault.”[1] However, in their motion for summary judgment, the defendants claimed protection through governmental immunity.

    Governmental Immunity

    Municipal employees are “liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts…”[2] Basically, governmental acts are supervisory and discretionary, while ministerial acts must “be performed in a prescribed manner without the exercise of judgment or discretion.”[3] However, even if a defendant successfully claims, as they did in this case, that the acts in question were discretionary, thus invoking governmental immunity, a plaintiff may still defeat a motion for summary judgment by asserting one of three exceptions (discussed in greater detail here): in this case, the identifiable person-imminent harm exception.

    The identifiable person-imminent harm exception requires a showing of three things: “(1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.”[4] A person will be deemed “identifiable… if the harm occurs within a limited temporal and geographical zone, involving a temporary condition;”[5] a harm is imminent if it is “ready to take place within the immediate future.”[6]

    The Court’s Decision

    In discussing the motion to dismiss, the Court agreed that Jesse was an identifiable victim of the assault, but she failed to meet the imminent harm requirement. There was no evidence on the record as to when the previous sexual advances were made, nor did she show that the defendants should have known the sexual assault would take place on or about February 28, 2005.[7] However, the Court agreed that the exception was satisfied as to the school officials’ conduct in allowing the two to ride home together:

    [Two school officials] admit in their affidavits that they knew some sort of sexual conduct had occurred between [Jesse] and [Jonathan]. Despite this fact, they did not stop [Jesse] from taking the bus with [Jonathan]. At that time, [Jesse] was an identifiable victim of harassment by [Jonathan], and the risk was limited in geographic and temporal scope because [Jesse] and [Jonathan] were riding the bus together and the risk only lasted the duration of the bus ride home. Moreover, the risk of harm was arguably imminent because the dismissal bell had just sounded to release the students early because of a snowstorm, and the bus would presumably be leaving soon thereafter.

    Thus, the Court denied the motion for summary judgment as to most of the counts in the complaint (it granted the motion as to one negligence per se count). Although the lawsuit was later withdrawn[8] by Jesse, this case nonetheless serves as another example of a student and/or parent surviving a motion for summary judgment in the face of defendants asserting governmental immunity protection.

    Written by Lindsay E. Raber, Esq.

    Should you have any questions about any education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

     


    [1] Estrada v. Stamford Board of Education et al., Superior Court, judicial district of Stamford, Docket No. CT 06 5002313. 2010 Conn. Super. LEXIS 3022 (November 19, 2010, Tobin, J.).

    [2] Bonington v. Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010).

    [3] Id.

    [4] Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009).

    [5] Id. at 275-76.

    [6] Stavrakis v. Price, Superior Court, judicial district of Litchfield, Docket No. CV 10 6001285, 2010 Conn. Super. LEXIS 2257 (September 7, 2010, Roche, J.).

    [7] See Footnote 1.

    [8] http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=FSTCV065002313S

    Connecticut Supreme Court Addresses the Identifiable Person-Imminent Harm Exception to Governmental Immunity

    Case Details

    In a decision released just last week, the Supreme Court of Connecticut had an opportunity to address municipal immunity, and specifically, the “identifiable victim-imminent harm” exception to discretionary act immunity.

    In Haynes v. City of Middletown, the plaintiff, acting on behalf of her plaintiff son, sought to recover damages for negligence from the City of Middletown after her son was pushed into a broken locker by a fellow high school student. He sustained personal injuries. In response to the plaintiff’s complaint, the defendant’s city invoked a defense of governmental immunity.  In their response, the plaintiffs failed to plead any exceptions to the defendant’s claim of immunity.

    A jury found for the victim, however the trial court granted the defendant’s motion to set aside the verdict on the ground of governmental immunity.  The appellate court affirmed the trial court’s decision to set aside the verdict, holding that the plaintiffs never made the identifiable victim-imminent harm argument to the defendant’s claim of municipal immunity.

    The Identifiable Victim-Imminent Harm Exception

    The identifiable victim-imminent harm exception is one of three exceptions to discretionary act immunity that Connecticut courts have carved out.  Where defendants’ acts are discretionary, they may invoke governmental immunity, barring a plaintiff’s claim against the governmental entity.  However, the identifiable victim-imminent harm exception applies when the circumstances make it apparent to the public officer charged with the exercise of discretion that his or her failure to act would be likely to subject an identifiable person to imminent harm.

    In the instant case, the Supreme Court reversed the appellate court’s decision and remanded the case to the appellate court for consideration of the sole issue of the plaintiff’s failure to plead the identifiable victim-imminent harm exception.  The Supreme Court found that, because the Appellate Court didn’t hear full arguments on that specific issue, it was not in a position to decide the case on that issue.  Thus, the Supreme Court remanded the case on that one, sole ground.

    Decisions like this serve as reminders that it is imperative to consult with attorneys who are well-versed in education law and able to effectively litigate this type of claim.  The identifiable victim-imminent harm exception is invoked in bullying and cyberbullying cases, when victims of bullying seek action against the school district.

    If you have questions about bullying, cyberbullying, or education law, do not hesitate to contact Joseph Maya, Esq. in our Westport office, at either 203-221-3100, or at JMaya@mayalaw.com.