Posts tagged with "liability"

School Liability in a Student Bullying Case: It’s Fact-Driven

It’s a new day, and [expectantly] the news brings us yet another bullying story. Brandon Myers was a 12-year-old student in the Blue Springs (Missouri) School District. He was born with a cleft palate, and for that he “faced constant bullying from his classmates. … [O]n one occasion at recess, several students threatened to ‘fill up the hole’ in Brandon’s face before shoving him to the ground. They then reportedly pushed grass and dirt in his nose and mouth.”[1] Brandon’s parents taught him to be the bigger person and ignore the teasing and bullying. They also “encouraged their son to tell a teacher about the bullying. When he did… he was [rebuked and] told to stop being a ‘tattletale.’”[2]

Between the “constant tormenting” and teachers who simply would not listen, Brandon was pushed to one conclusion: suicide by hanging was his only recourse. Brandon’s parents just reached a settlement with the school district’s insurance company to the tune of $500,000. The agreement also included “making two administrators be retrained in bullying awareness” and the implementation of a bullying awareness day.[3]

Connecticut law is presently unsettled with respect to whether school districts are liable for bullying in schools. Each case is typically very fact-driven: “whether a parent can prevail on [a negligence claim] is dependent on the unique facts and circumstances surrounding their child’s case.”[4] It also depends on whether the action on part of the school was governmental or ministerial.

Governmental acts are performed to benefit the public and involve discretion and supervision. For public policy reasons, the Connecticut legislature has elected to grant qualified immunity to school personnel who perform acts of this nature. Therefore, liability will not attach in a negligence action unless one of three exceptions applies: 1) the act involves malice or intent to injure; 2) there is a statutory cause of action against the municipal employee; or 3) the municipal employee’s failure to act directed at an identifiable person subject to an imminent harm.[5]

On the other hand, ministerial acts do not allow the exercise of discretion or judgment. They are “usually secondary in nature and executed according to established policy, rule or practice,”[6] such as inspecting and keeping hallways clean or adult supervision at recess.[7] The failure to adequately perform a ministerial duty may result in liability of the school district. However, Connecticut courts are in disagreement as to whether or not “a school’s failure to take action against bullying when it knew or should have known about the misconduct constitutes a misperformance of a ministerial function.”[8]

The extent to which a school district details its anti-bullying policy appears to play a key role in the court’s decision, and “[a] parent will likely have a better chance to prevail on a negligence claim under a ‘ministerial action’ theory if the school fails to discharge a responsibility that was spelled out in the plan in such exquisite detail that it eliminated or marginalized a school employee’s judgment or discretion.”[9]

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 lawyers 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] “Blue Springs School District’s insurance company settled bullying lawsuit for $500,000,” by Melissa Yaeger. October 15, 2012: http://www.kshb.com/dpp/news/local_news/investigations/blue-springs-school-districts-insurance-company-settled-bullying-lawsuit-for-500000?hpt=ju_bn5

[2] Id.

[3] Id.

[4] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq. pp. 104-05.

[5] Esposito v. Town of Bethany, No. CV065002923, 2010 WL 2196910, at *4 (Conn. Super. Ct. May 3, 2010).

[6] Id. at *3.

[7] See Footnote 4 at pp.105.

[8] Compare Dornfried v. Berlin Board of Education, No. CV064011497S, 2008 WL 5220639, at *1 (Conn. Super. Ct. Sept. 26, 2008) with Esposito, supra, at *8.

[9] See Footnote 4 at pp.106.

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.

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.

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.

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.

Is a Bonus a ‘Wage’?: Not According to a Recent Connecticut Supreme Court Decision

Is a Bonus a ‘Wage’?:  Not According to a Recent Connecticut Supreme Court Decision

Are you currently employed in Connecticut and have been promised a year-end bonus or had been promised a year-end bonus and never received it?   A recent Connecticut Supreme Court decision may affect the amount of protection you are afforded under Connecticut law if your employer defaults or has defaulted on that promise.

This recent case addressed the question of whether a year-end bonus promised by an employer is considered a ‘wage’ for the purposes of the Connecticut Wage Act.  Answering that question in the negative, the Supreme Court denied a Connecticut employee the ability to proceed with a wrongful withholding of wages claim that he had initially pursued after his employer failed to pay out what the employee had thought to be a promised year-end bonus.

Under this decided Supreme Court case, the amount of liability your employer will face for failing to pay out a promised year-end bonus will hinge upon how your employer defined the conditions under which a bonus would be paid.  If the conditions are specific goals set for you as an individual employee (e.g. a certain number of billable hours need to be reached), then under the Connecticut Wage Act your employer will be required to pay out that bonus as wages in accordance with their promise.  If they do not, you are afforded the protections of the Wage Act and can bring an action against your employer for wrongfully withholding wages.  If successful, it is possible that you could receive, by way of damages, twice the full amount of your bonus and any attorney fees incurred in pursuing the action.  In addition, due to the serious nature of such an offense, your employer could potentially be fined and/or imprisoned for their actions.

Unfortunately, however, if your employer was more ambiguous about the requisite conditions for a bonus, under this new case law, it is likely that they will be able to avoid liability for wrongfully withholding your wages.  If that is the case, while you can still pursue other causes of action against your employer, you will not be able to receive twice the full amount of your bonus or attorney fees.

The events of this recently decided case unfolded as follows:   At the beginning of the employment relationship between an employee and a Connecticut law firm, the parties agreed that the employee’s annual compensation would consist of a base salary and a year-end bonus.  The employment contract called for this year-end bonus to be based on factors such as seniority, business generation, productivity, professional ability, pro bono work, and loyalty to the firm.  The employee remained at the firm for several years and each year he received his salary and the promised year-end bonus.  When the employee left the firm he discovered that he was not going to receive the year-end bonus for that last year of his employment.  To try and recover what he had thought was a promised bonus; the employee commenced an action against his employer alleging breach of contract and wrongful withholding of wages.

The trial court dismissed the wrongful withholding of wages claim, determining that the year-end bonus was not ‘wages’ as defined by the Connecticut Wage Act.  The breach of contract claim, however, went to trial.  The Trial Court found in favor of the employee and awarded him damages in the amount of his year-end bonus plus interest.  On appeal, the Appellate Court upheld the Trial Court’s finding as to the breach of contract claim but reversed the Trial Court’s decision to dismiss the wrongful withholdings of wages claim.  The Appellate Court determined that the structure of the agreement as to the year-end bonus meant that the bonus could have been classified as ‘wages’ under the Connecticut Wage Act and therefore held that the employee could proceed with his wrongful withholding of wages claim.

The issue of the wrongful withholdings of wages claim was appealed to the Connecticut Supreme Court where the Court decided that because the employee’s bonus was discretionary, (not ascertainable by applying a formula) it did not constitute ‘wages’ under the Connecticut Wage Act.  The employee, therefore, was not able to proceed with his wrongful withholding of wages claim.

Although the employee did recover some monetary damages through his breach of contract claim, it was not anywhere near as much as he would have received if he had been able to proceed with his wrongful withholding of wages action.

It is quite possible that after the release of this opinion many employers will revisit their bonus policies to make the language a little less precise or announce that their bonuses are discretionary in order to take advantage of the protections afforded under this recent case.  It is important, therefore, that as an employee you are aware of what kind of bonus you have been promised so that you know how strongly to rely on that promised bonus and what options are available to you if the employer refuses to pay.

If you have already been denied your year-end bonus and believe that it was a discretionary bonus, there are still ways in which you can potentially recover that lost income, such as the breach of contract claim pursued by the employee in this recent case.  If you have been denied a year-end bonus that was not discretionary and you had met the required conditions for receiving that bonus, you are still protected under the Connecticut Wage Act and can bring a wrongful withholding of wages action against your employer.  This action may allow you to receive damages in the amount double your bonus and possibly receive any incurred attorney fees.

If you have any questions regarding employment and labor law in Connecticut, please contact Joseph C. Maya, Esq. He can be reached at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com. Mr. Maya handles cases involving employment contracts, separation agreements, non-competition agreements, restrictive covenants, union arbitrations, and employment discrimination cases in New York and Connecticut.

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“Do Not Let Your Self-Worth Be Defined By Bullies”

“Jumping off the gw bridge sorry.” This was the “farewell message” of Tyler Clementi, an eighteen-year-old Rutgers University student, posted on Facebook after he discovered his roommate was spying on his sexual encounters with another man.

It almost goes without saying that bullying (and its technological brother, cyberbullying) is one of the most important topics of school law today. National surveys and studies conducted over the past several decades, along with the high-profile suicides of Clementi, Phoebe Prince, and Megan Meier, have provided startling information on the prevalence of bullying tactics both in person and through Internet channels of communication. Indeed, “70 percent of middle and high school students have experienced bullying at some point,” with approximately 5 to 15 percent described as “chronic victims.”[1] Unfortunately, less than half actually report such incidents, and the short- and long-term effects on victims can be particularly devastating, such as depression, anxiety, poor health, and decreased academic performance and school participation.

How the nation has reacted has been as diverse as its population.[2] Efforts in Connecticut have been particularly extensive and comprehensive (as discussed here), though many States still find themselves unwilling, for whatever reason, to extend protections to particularly vulnerable groups of students, such as LGBT. Particularly shocking is the prevalence of laws specifically written to stigmatize LGBT students, mandating negative portrayal by the very faculty and staff we’d expect would protect students regardless of their differences.[3]

Courts appear more and more willing to subject school administrators, Boards of Education, and even towns to liability for the harms brought upon students at the hands of their peers. (See, for example, my two previous posts from today, here and here.) In the case of Tyler Clementi, however, the parents elected not to pursue litigation against the school or Tyler’s roommate because “[t]he family got to a place where they really felt an obligation and desire to use the publicity for positive purposes.”[4] Tyler’s roommate, Dharun Ravi, was convicted earlier this year of crimes related to the spying incidents,[5] though the seemingly lenient sentence has been widely called into question.[6]

If you personally or, if a parent, your child has been subject to bullying in school or on the Internet, it is imperative that you take to heart the message of Jennifer Livingston, a TV journalist thrust into the spotlight this past week regarding a viewer’s bullying of her weight:

To all the children out there who feel lost, who are struggling with your weight, with the color of your skin, your sexual preference, your disability, even the acne on your face. Listen to me right now. Do not let your self-worth be defined by bullies. Learn from my experience that the cruel words of one are nothing compared to the shouts of many.[7]

Should you have any questions regarding school bullying or any other 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.

Written by Lindsay E. Raber, Esq.


[1]“Bullying: A Module for Teachers,” by Sandra Graham, PhD, of the American Psychological Association. Accessed September 24, 2012: www.apa.org/education/k12/bullying.aspx

[2] See, for example, the following info-graphic: http://en.wikipedia.org/w/index.php?title=File:School_bullying_laws_in_the_United_States.svg&page=1

[3] See, for example, “States with Safe School Laws,” by GLSEN. Accessed October 8, 2012: http://www.glsen.org/cgi-bin/iowa/all/library/record/2344.html

[4] “Tyler Clementi’s family decides not to sue,” by Dominique Debucquoy-Dodley. Published October 6, 2012. Accessed October 8, 2012: http://www.cnn.com/2012/10/05/justice/new-jersey-tyler-clementi-lawsuit/index.html

[5] “Dharun Ravi apologizes for ‘childish choices,’ plans to head to jail,” by Logan Burruss. Published May 30, 2012. Accessed October 8, 2012: http://www.cnn.com/2012/05/29/justice/new-jersey-ravi-sentence/index.html

[6] See, for example, “Is 30-day sentence fair for student who bullied gay roommate?” by the CNN “This Just In” blog. Published May 21, 2012. Accessed October 8, 2012: http://news.blogs.cnn.com/2012/05/21/is-30-day-sentence-fair-for-student-who-bullied-gay-roommate/

[7] “Star brother Ron Livingston defends ‘fat’ anchor sister, Jennifer,” by News Limited Network. Published October 5, 2012. Accessed October 8, 2012: http://www.news.com.au/entertainment/celebrity/tv-anchor-jennifer-livingston-takes-on-bully-who-criticised-her-weight/story-e6frfmqi-1226488835303

Bullying In Schools: Are We Doing Enough to Protect Children?

Bullying In Schools: Are We Doing Enough to Protect Children?

On September 22, 2010, Seth Walsh should have been skateboarding or playing baseball, listening to his new favorite song, perhaps, or talking on the phone with friends.  He should have been happy and care free.  After all, Seth was only thirteen years old, an age when children should be laughing and dreaming of the endless opportunities that lie ahead.  Instead, Seth Walsh was lying beneath a tree in his backyard unconscious, no longer breathing.  He had just hung himself.  After spending the next week on life support, with his mother looking on, Seth ultimately died.

And just days earlier on the other side of the country, Tyler Climenti, an eighteen year old student at Rutgers posted what would be his last Facebook message, “Jumping off the gw bridge sorry.” Later that night Tyler took his own life as well- throwing himself into the dark and frigid water of the Hudson River.

In September, 2010, within nineteen days, four teenagers from around the country committed suicide.  William Lucas, from Greensburg Indiana was only fifteen, Asher Brown from Houston Texas was thirteen.  Like Seth, Billy hung himself.  Asher shot himself in the head with one of his step-father’s guns.  The common link?  All four had been relentlessly tormented at school.  Shining new light on what has become a national epidemic, these cases illuminate the devastating and increasingly deadly effects of bullying.  There is some debate over whether bullying is a new phenomenon or whether children are simply reacting differently.  Whatever the case may be, one thing is clear- we must take action to protect the destruction of more innocent lives.

The Department of Education recently entered the fray, releasing a “Dear Colleague” letter in which it urged school districts to address bullying within the classroom, providing school administrators with guidance on how to end harassment.  Additionally, within the last couple of years, many states, including New York and Connecticut, have passed anti-bulling legislation.  At what point should a school district be held liable when it fails to prevent bullying?  The answer to that question is not clear-cut.  Indeed, parents face several legal challenges when they pursue a case.

For instance, in 2008, the Superior Court at New Britain held that parents of a Berlin High School student could not maintain a negligence cause of action against the school district, the administrators or the child’s coach.  In Dornfried v. Berlin Board of Education, et al, Robby Dornfried’s parents alleged that while a freshman and sophomore at the high school, and a place-kicker on the varsity football team, their son was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates.  They further alleged that school administrators, the guidance counselor, even Robby’s coach, knew of the problem, but did nothing to stop the behavior.  Robby eventually sought medical treatment and ultimately transferred to Northwest Catholic High School halfway though his sophomore year.

Analyzing whether the principal of governmental immunity barred suit, the Court recited the general rule that a municipal employee may be liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts- those performed wholly for the benefit of the public and supervisory or discretionary in nature.  Agreeing with the defendants, the Court found that the supervision of school children, not only during school hours, but at extra-curricular events such as football practice or a football game is a discretionary matter.  It next addressed whether it was appropriate to apply any of the exceptions to the immunity doctrine.  Generally, there are three:

  1. Liability may be imposed for a discretionary act when the alleged conduct involved malice, wantonness or intent to injure.
  2. Liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws.
  3. 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.

Ignoring the first two exceptions, the Court addressed whether Robby was an “identifiable person subject to imminent harm” under the law.  Citing Supreme Court precedent, Judge Trombley, found he was not, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.  The Court ultimately held that although participation in school sponsored athletic programs is most likely encouraged, the participation is on a purely voluntary basis and, therefore, governmental immunity barred Robby’s negligence claims.

Earlier this year the Superior Court at New Haven reached a different conclusion in a bullying case.  In Esposito v. Town of Bethany, et al, the father of an elementary school student brought suit against the Town of Bethany, the Board of Education and the Bethany Public School District alleging negligence.  The student, Christina, was allegedly teased on a regular basis and at one point another student threw a ball at the back of her head during recess.  Christina sustained severe injuries “leaving her with an acquired brain injury and severe optical dysfunction.”

In response to Connecticut’s anti-bulling legislation, which became effective July, 2002, the Town of Bethany adopted a comprehensive anti-bullying policy.  The Plaintiff’s pointed to that policy arguing that the school failed to follow it and, thus, their acts were ministerial rather than discretionary in nature.  The Court framed the issue as whether, “…a detailed method of behavior was laid down for administrators and teachers for dealing with bullying depriving them of any judgment or discretion, or that, actions were dictated to deal with the problem that involved merely the execution of an established policy.”  Leaving this question unanswered, the Court ultimately erred on the side of caution, allowing the plaintiff an opportunity to present the facts at trial.

Later in its decision the Court addressed whether the “identifiable person subject to imminent harm” exception would apply if the school’s actions were in fact discretionary.  In doing so, the Court hinted at expanding its view of the doctrine in the context of school bullying.  The Court interpreted prior case law as suggesting that the only identifiable class of foreseeable victims is that of school children attending school during school hours, but went on to suggest, “[b]ut if a clearly identifiable person, child or adult, is exposed to imminent harm then the exception could apply also if that individual is exposed to imminent harm,” continuing, “an individual may be identifiable for purposes of the exception to qualified immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition.”

In ruling in Christina’s favor, the court also noted that the appellate courts have relaxed the “identifiable person” portion of the analysis as it pertains to school children stating simply, “they are a foreseeable class to be protected.”  The Court concluded it must assume a similarly protective attitude will be applied in examining the “imminent harm” requirement stating, “bullying is condemned by state statute, children must attend schools, children are not as capable of defending themselves, they are vulnerable in the entire school area where unsupervised conduct prevails, and the bullying concept includes… a particular child subject to these acts.”

Whether a victim of bullying will be successful in bringing a claim against a school district will depend heavily on the facts and circumstances of the case as well as the theory of liability, the state in which the claims are made and the causes of action asserted.   As set forth above, in Connecticut governmental immunity may preclude recovery altogether unless the victim can demonstrate the application of an exception is appropriate.

By: Michael D. DeMeola

If you have any questions regarding bullying in schools, or any special education law matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Connecticut Court Holds Teacher Liable for Student’s After School Injuries

If you have a question or concern about special education law, school administration, federal standards, or the overall rights of a student, please feel free to call the expert education law attorneys at Maya Murphy, P.C. in Westport today at (203) 221-3100 .

This case was not handled by our firm. However, if you have any questions regarding this case, or any education matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.

In the case of Romanella v. Nielson, a student sued a teacher, principal, board, and town, seeking damages for injuries suffered when the student was assaulted by another pupil outside the doors of a school less than a minute after school dismissal. The teacher and related agents moved more summary judgment which is a preemptive judgment by the court in favor of one party over the other. In ruling on a motion for summary judgment, a court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. In seeking summary judgment, the teacher has the burden of showing the nonexistence of any issue of fact.

The teacher, the principal, the board, and the town argued that the defense of governmental immunity applied to bar the case. In law, qualified governmental immunity is available as a defense when the acts complained of are discretionary. A municipality is immune from liability for the performance of governmental acts, as distinguished from ministerial acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action. There are some exceptions to governmental immunity. The student argued that he was entitled to suit because of the identifiable person-imminent harm exception to governmental immunity. For the identifiable person-imminent harm exception to governmental immunity to apply, three things are required: (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. The identifiable person-imminent harm exception to government immunity applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. School children who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims.

The issue was whether the failure of school personnel to recognize the possibility of the impending assault on the student and/or their failure to take any steps to forestall it, constituted discretionary or ministerial acts. The court found that the town’s duty in this case was discretionary in nature. The student also claimed that the events that allegedly occurred in the classroom before the assault transformed him into an identifiable person subject to the threat of imminent harm and, as a result, the defense of qualified governmental immunity was not available. The court found that genuine issues of fact existed concerning whether school officials knew or should have known of the possibility of the impending assault on the student. The atmosphere in the classroom immediately prior to the assault could reasonably have been interpreted as one in which the student was an identifiable victim subject to the threat of imminent harm. The student’s claims were not barred by the doctrine of governmental immunity as a matter of law. The teacher’s motion for summary judgment was denied.

If you have a child with a disability and have questions about special education law, please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a free consultation.

This case was not handled by our firm. However, if you have any questions regarding this case, or any education matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.


Source: Romanella v. Nielson, 2009 Conn. Super. LEXIS 1463, 2009 WL 1753917 (Conn. Super. Ct. May 27, 2009)

***All posts for the MayaLaw.com blog are created as a public service for the community. This case overview is intended for informational purposes only, and is not a solicitation of any client.***