Posts tagged with "governmental immunity"

Defeating Governmental Immunity: Navigating the Uphill Climb

Lawsuits against the State of Connecticut or its local municipalities are notoriously difficult to pursue from a legal perspective, in large part due to various statutory protections and administrative hurdles put in place by the legislature.  For example, a plaintiff seeking to initiate a personal injury case against her own town must adhere to strict time limitations and procedural requirements in order to have her case successfully get into court and survive the scrutiny of a judge, well before she ever comes close to having a “day in court” before a jury of her peers.

Unless the site of a plaintiff’s injury falls within one of a few narrow exceptions (such as an injury on a “public highway,” which would invoke the protections and mechanisms of Connecticut’s “highway defect statute,” or Connecticut General Statutes Section 13a-149), a plaintiff is entitled only to proceed against a state or municipality under the Political Subdivision Liability Statute (Connecticut General Statutes Section 52-557n).

Section 52-557n, however, contains its own pitfalls for prospective plaintiffs.  The statute provides that a town or political subdivision may be liable for negligent acts of its employees, officers, or agents except if such actions or omissions constitute criminal conduct or willful misconduct, or, significantly, if such negligent acts or omissions require the exercise of judgment or discretion as an official function of the job responsibility.

Governmental Immunity

The latter part of this test is key – and is a gold mine for municipalities (and their lawyers) seeking to invoke the governmental immunity doctrine and escape liability for the negligence of its employees, even if such negligence is established by an injured person.  What the provision states, in plain language, is that a town may well be free and clear from liability if the task that was performed negligently was a task that required an exercise of judgment on the part of the town employee.

Take the hypothetical example of a plaintiff who was injured when she slipped on ice on the front steps of City Hall.  The evidence suggests that the maintenance workers either knew or should have known that ice had built up on the steps, that they were expecting the public to be walking in and out of the building, and that someone clearly “dropped the ball” in making sure that the ice was scraped off and that salt or sand was applied generously to the area.

Instead, nothing was done, nothing was scraped, no sand or salt was used, no warning signs were posted, and the ice remained for several business days before this plaintiff came along and fell on her very first visit to City Hall.

Arguments for the Plaintiff vs. the City

Even with these simplified facts (which appear at first blush to be quite damaging to the City), the City will surely investigate the existence of any policy, procedure, and practice of those maintenance workers who were assigned to the front steps of the building.  In this case, the City will attempt to prove by a preponderance of the evidence that “judgment” and “discretion” of the City employees were required to be exercised to keep those steps free of snow and ice.

On the contrary, a plaintiff will seek to demonstrate that the actions (or omissions) of the City workers were “ministerial” – that is, the workers had a clear directive to do something (e.g. to clear the ice at certain times, in a certain manner, with no exercise of judgment) and yet they failed to carry out that task, resulting in the plaintiff’s injury.

When the proverbial dust settles, if no clear, articulated policy existed to clear the steps, to inspect the steps on a scheduled basis, or to take preventative measures against ice buildup, a municipal defendant in this instance would likely argue (perhaps successfully) that the maintenance workers were required not to follow any protocol, but only to “use their judgment and discretion” in determining what needed to be kept safe and clear for pedestrian traffic.

How to Approach Cases Against a State or Local Municipality

An unknowing plaintiff (or perhaps an inexperienced attorney) who advances her case against a town believing that a jury would be shocked if there is no snow removal policy might find herself equally shocked when or if it is determined that any negligence was of a “discretionary” nature and governmental immunity therefore applies, subject to other very narrow legal exceptions not discussed here.

A savvy plaintiff, in discovery and at the very outset of the lawsuit, might request that the town admit, under oath and in writing, to the existence of a clear and articulated policy (even if it is unwritten) with regard to the safety issue which resulted in her injury.  While towns (and their attorneys) are often eager to show that preventative measures are and were in place, in this instance, they may well eliminate – as a matter of law – their own sacred protection of governmental immunity at trial.

With a valid legal admission of a clear and articulated policy, a municipal defendant is effectively hamstrung – it cannot simultaneously admit to the existence of a policy and directive while claiming that its employees were simply exercising their own judgment.  Dramatically and emphatically, the curtain of governmental immunity draws away, paving the way for a plaintiff to reach the eyes and ears of a jury.

An injured person seeking legal assistance as against the state or a municipality faces a virtual hornet’s nest of obstacles and legal entanglements.  A trusted, informed advocate is essential to place such a claim in the best possible legal position.  The invitation is open to consulting with attorneys at our firm who are experienced in this type of civil litigation.

If you have questions regarding any personal injury matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

How to File a Personal Injury Claim Against a School in Connecticut

If you have a personal injury claim against a school, a school employee, or a similar government entity or employee, you probably already know that it’s more complicated than just suing a private homeowner for a slip-and-fall. But what makes it so complicated, and what is the process?

Schools and their employees are often immune from liability for actions they undertake within the course and scope of their duties. That immunity is not unlimited, however, and particularly where a child’s injury is caused by gross negligence, malice, or wantonness, you can be compensated with monetary damages. CGS § 4-141, et seq. But, before you take your case to court, your case must be reviewed by the Commissioner of Claims.

Depending on the value of your case, the Commissioner of Claims will review your case, and may conduct a fact finding investigation, including witness interviews, document inspections, and other types of inquiries. The parties may engage in discovery in some cases, and the Attorney General may also be permitted to file a dispositive motion that asks the Commissioner to decide the issues in the case just on the known facts and law, but without a full hearing or trial. Once the Commissioner of Claims’ investigation (if applicable) is complete, s/he may issue a decision, or if there are unresolved legal issues, they may authorize you to file suit in
court.

Navigating an administrative process with an administrative authority requires expert guidance. Small mistakes such as misunderstanding a statute or missing a deadline can impact or even eliminate your ability to seek relief. If you have a personal injury claim against a school, school employee, or a similar government entity, the attorneys at Maya Murphy, P.C. can assist you. Managing Partner Joseph C. Maya may be reached directly by telephone at (203) 221-3100, ext. 110 or by email at JMaya@mayalaw.com.

The above is not intended to constitute legal advice, and you should consult with an attorney as soon as possible if you believe you have this, or any other type of claim.

In Negligence Suit, Superior Court Finds in Favor of Defendant School District, Citing Qualified Immunity

In a recent negligence action, the Superior Court of Connecticut in Litchfield granted a motion to strike filed by school officials and a town board of education (collectively the defendants) because no exception to qualified immunity for discretionary acts applied to the case.

Case Details

One day during recess, a parent’s daughter was kicked and injured by a classmate (defendant student). The defendants were aware that the daughter was frequently bullied and harassed by the defendant student. Therefore, the parent filed suit, alleging that the defendant “failed in its duty to protect [his daughter] against any future bullying.”  However, the defendants asserted that they were not subject to liability because of governmental immunity.

Generally, municipal employees enjoy “qualified immunity in the performance of a governmental duty,”[1] which involves the exercise of discretion. However, even this immunity may be surmounted by a plaintiff if he or she can establish the applicability of one of three exceptions.

Identifiable Person-Imminent Harm

One of these exceptions is the “identifiable person-imminent harm” exception, which requires: “(1) an identifiable victim; (2) an imminent harm; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.”[2] This is a narrowly applied exception, however, because the harm itself must be “limited both in duration and in geography to make it apparent to the defendants that schoolchildren were subject to imminent harm.”[3] In other words:

Imminent harm excludes risks which might occur, if at all, at some unspecified time in the future. In order to meet the imminent harm prong of this exception… the risk must be temporary and of short duration.[4]

In this case, the Court found that although the plaintiff satisfied the first prong, he failed to do so with the second two. He failed to “allege a temporary condition which placed [his daughter] in imminent harm;” rather, it could have happened anytime, anywhere during the school day.[5] The defendants’ knowledge of the previous bullying and harassment, without more, was insufficient to satisfy the remainder of the test. Therefore, the Court ruled that the defendants were entitled to qualified immunity and granted the motion to strike.

Written by Lindsay E. Raber, Esq.

If you are the parent of a child who has been bullied or harassed at school, it is imperative that you consult with an experienced and knowledgeable school law practitioner. The attorneys at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. If you have any questions regarding school liability or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya. 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] Burns v. Board of Education, 228 Conn. 640, 645 (1994).

[2] Violano v. Fernandez, 280 Conn. 310, 319-20 (2006).

[3] Doe v. Board of Education, 76 Conn. App. 296, 302-03 (2003).

[4] Cady v. Tolland, 2006 Conn. Super. LEXIS 3526.

[5] Antalik et al. v. Thomaston Board of Education, 2008 Conn. Super. LEXIS 2082.

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.

Another Case Against the School District, Town Jumps Summary Judgment Hurdle

In a negligence action, the Superior Court of Connecticut at Danbury denied a motion for summary judgment filed by the Town of New Milford, the New Milford Board of Education, and several school employees (collectively the defendants). The Court was not persuaded that the defendants enjoyed governmental immunity from suit, or the claim that they did not owe a duty to a student-victim assaulted by another student on school grounds.

Case Details

In this case, the plaintiff was the target of repeated bullying and harassment from a classmate, Kevin, during his freshman and sophomore years in high school. He endured pushing and shoving, being struck by a stack of school books, menacing stares, and even derogatory “gay” remarks from Kevin. The plaintiff constantly complained to various school administrators, though no meaningful action was ever taken. This culminated to a full-blown assault of the plaintiff at Kevin’s hands outside the school cafeteria.

The plaintiff sued the defendants, arguing that they had a duty to protect him from Kevin and failed to do so. “The plaintiff contends that [one individual defendant] had a duty to compel compliance with school rules and to prevent bullying and harassment… [as well as ] a legal duty to be alert to possible situations that might include bullying and to inform the administration immediately of such events.”[1] In addition, he claimed that governmental immunity was inapplicable, because he was an identifiable victim to an imminent harm. Finally, he asserted town liability because the Board of Education was an agent for the town in “mandating control” over the public high school.[2]

Municipal employees are “liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts…”[3] Basically, governmental acts are supervisory and discretionary, while ministerial acts must “be performed in a prescribed manner without the exercise of judgment or discretion.”[4] However, even if a defendant successfully claims 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.

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.”[5] A person will be deemed “identifiable… if the harm occurs within a limited temporal and geographical zone, involving a temporary condition;”[6] a harm is imminent if it is “ready to take place within the immediate future.”[7]

The Court sided with the plaintiff and denied summary judgment as to all defendants. It noted, “The [board of education’s] duty to supervise students is performed to the benefit of the municipality;”[8] in this case, the plaintiff’s claim didn’t involve his education, but rather “the inability of certain teachers and staff at New Milford High School to supervise and maintain control on its premises for the protection of its students.”[9] 

A duty to supervise students is not confined to just younger children, but also includes high school students because a gathering “in large numbers at lunch time or at sporting events would certainly seem to present a risk of incidents such as the one involved in this case occurring [an assault at school].”[10] Thus, on all grounds asserted by the defendants, the motion for summary judgment was denied.

This case, Straiton v. New Milford Board of Education, et al, appears to be continuing through the courts with a hearing scheduled for October 19, 2012. It may be found on the Judicial Branch website under DBD-CV10-6003255-S.

Written by Lindsay E. Raber, Esq.

Bullying in schools has become a serious problem, and increasingly courts are willing to permit the case to proceed beyond a motion for summary judgment, despite claims of governmental immunity or no duty owed to the students. If you are the parent of a child who has been bullied or assaulted, despite repeated unaddressed complaints to administration, it is imperative that you consult with an experienced and knowledgeable school law practitioner. Should you have any questions regarding bullying or other education law matters, 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] Straiton v. New Milford Board of Education et al., 2012 Conn. Super. LEXIS 773 at 15.

[2] Id. at 11.

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

[4] Id.

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

[6] Id. at 275-76.

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

[8] Purzycki v. Fairfield, 244 Conn. 101, 112 (1998).

[9] Straiton, supra at 12-13.

[10] Maretz v. Huxley, Superior Court, judicial district of New Haven, Docket. No. CV 07 5011978 (January 12, 2009, Corradino, J.)

Negligence Claims Against School Following Son’s Suicide

Plaintiff’s Negligence Claims Against School Following Son’s Suicide Survive Motion to Strike, Proceeds Further Into Litigation

Michael Girard was a senior at Putnam High School during the 2005-2006 academic year when his guidance counselor learned that he was suicidal and/or had threatened to kill himself. However, the counselor took no action to aid Michael despite a conversation with him about the threat, and simply let him leave for home by himself. Michael also “expressed an intention to harm or kill himself in the presence of employees and agents of the High School, Board of Education, and Town” while on school grounds during school hours. Once again, no official action was taken by any of these individuals. On March 23, 2006, Michael committed suicide by methadone toxicity.

At the time of Michael’s death, Putnam schools had a Suicide Prevention Policy (policy) in effect in the district. It set forth “detailed guidelines” on actions for staff to take when confronted with a scenario such as Michael’s. It required “immediate notification of emergency personnel or school psychologist or social worker,” and stated, “Under no circumstances is a student allowed to go home. The student must be released only to a parent, guardian, or other responsible adult.”

Lawsuit Arguments

In light of this policy, Michael’s parents filed a negligence lawsuit against the Town of Putnam, Board of Education, and various school employees, including the guidance counselor (collectively “defendants”). However, the defendants submitted a motion to strike, challenging the legal sufficiency of the amended complaint’s allegations. They argued on two fronts:

  • “The act of suicide is a deliberate and intentional act” absolving the defendants from liability. In other words, because Michael’s death was an unforeseeable, intentional tort, the defendants were could not be sued for negligence.
  • The defendants also claimed governmental immunity protection, pursuant to Connecticut General Statutes §§ 52-557n and 52-557n(b)(6). “[M]unicipalities and its employees may be exposed to liability for acts of negligence unless the function involved the exercise of discretion,” and there is no immunity for ministerial acts (exercise of judgment and discretion not allowed). In essence, the defendants argued that whether to follow the policy was “a discretionary function.”
The Court’s Decision

The Superior Court of Connecticut, Judicial District of Windham at Putnam denied the motion to strike as to these claims. It noted that while “suicide generally is an unforeseeable result that serves to preclude liability,” it does not automatically “break the chain of causation if it was a foreseeable result of the defendant’s tortious act.” In this case, the Court determined that Michael’s suicide “could be a foreseeable result of school staff’s failure to follow the suicide prevention policy.” As further explained:

It is foreseeable that if a person declares an intent to commit suicide, suicide is a foreseeable risk if nothing is done. Indeed, it was the written policy of the Putnam High School to immediately safeguard a student and obtain emergency medical or professional assessment and counseling for such a student in that circumstance. That is a clear cut warning of the need to take action. It creates a foreseeable harm as a consequence of a failure to act. No reasonable staff member could have concluded otherwise…

In addition, the Court was not persuaded by the defendants’ second argument. “[T]he Suicide Prevention Policy, by its terms, resolved that staff members are not qualified to assess whether someone is suicidal and it forbids discretion or delay in sending a student, who threatens suicide, to someone who is qualified to make the assessment.” When a staff member faces a situation like Michael’s, they must “follow their own mandatory procedures after a ministerial duty was triggered.” Therefore, the governmental immunity protection was inapplicable.

Intentional Infliction of Emotional Distress

Ultimately, the Court granted the motion to strike as to intentional infliction of emotional distress claims (as to the parents), but permitted the negligence claims related to Michael’s death to proceed further into litigation. “The plaintiff has alleged sufficient facts to show that the defendants committed negligent acts that increased the risk of accomplishment of a suicide by [Michael], and that their negligence was a substantial factor in causing that harm.”

Jury selection and the start of the trial are scheduled to begin at 9:30am on October 16, 2012. The case is Estate of Michael Girard et al. v. Town of Putnam et al., CV-08-5002754-S.

Written by Lindsay E. Raber, Esq.

Should you have any questions about school liability or other education law matters, 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.

The Application of Governmental Immunity to School Bullying Suits

Governmental Immunity

In Connecticut, the doctrine of “governmental immunity” may bar a plaintiff bullying victim from succeeding in a claim against a school district.  The general concept of governmental immunity stems from the value judgment that government officers and employees should have the discretion to carry out their duties without the perpetual fear or threat of a lawsuit for any injury caused in the administration of their duties.  However, the concept of governmental immunity applies only where municipal officers are engaged in discretionary acts, as opposed to ministerial acts.

A ministerial act refers to an act “which is performed in a prescribed manner without the exercise of judgment or discretion.”[1] In other words, for a plaintiff to allege the existence of a ministerial duty, he or she must demonstrate that “the defendant was required to perform in a prescribed manner and failed to do so.”[2] Connecticut courts have generally found that the supervision of students, implementation of school policies, and control of a school and its students are carried out through discretionary acts,[3] which allow a school to invoke governmental immunity if subjected to a suit.

Exceptions to Discretionary Act Immunity

However, there are three exceptions to discretionary act immunity.  Liability may be imposed for a discretionary act where the conduct alleged involves malice, wantonness, or intent to injure; liability may be imposed for a discretionary act when a statute specifically provides for a cause of action against a municipality for failure to enforce certain laws; and finally, liability may be imposed “when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.”[4] 

It is this last exception, the identifiable person-imminent harm exception, which is relevant in school bullying cases.  The Connecticut Supreme Court has “construed this exception to apply not only to identifiable individuals, but also to narrowly defined identifiable classes of foreseeable victims.”[5] Such victims can include victims of school bullying in cases where imminent harm was foreseeable if the defendants did not act with reasonable care.  Whether it would be apparent to a school district that their actions, or inactions, would be likely to subject a plaintiff to harm will be a major factor that a court uses in determining whether a school district can be immune from a bullying suit based on governmental immunity.

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

 


[1] Heigl v. New Canaan, 218 Conn. 1, 5, 587 A.2d 423 (1991).

[2] Id.

[3] Rigoli v. Town of Shelton, 2012 Conn. Super. LEXIS 349, at *9 (Feb. 6, 2012).

[4] Straiton v. New Milford Bd. Of Educ., 2012 Conn. Super. LEXIS 773, at *20 (Mar. 13, 2012), quoting Violano v. Fernandez, 280 Conn. 310, 319-20 (2006).

[5] Straiton, at *22.