Strycharz v. Cady ( 2016 )


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    STRYCHARZ v. CADY—DISSENT
    EVELEIGH, J., concurring and dissenting. I agree
    with the majority that ‘‘the trial court improperly
    granted the motion for summary judgment as to [the
    defendants Dale J. McCubrey] and [Ross] Sward with
    respect to the . . . claim that they breached their min-
    isterial duty to assign school staff to supervise students
    during school hours.’’ I further agree with the majority
    that, with regard to the identifiable person-imminent
    harm exception to the doctrine of governmental immu-
    nity, the named plaintiff, Joseph Strycharz,1 ‘‘remained
    a member of the identifiable class of foreseeable victims
    to the extent that the defendants2 had a duty to super-
    vise him while under their custody and control.’’ (Foot-
    note added.) I respectfully disagree, however, with the
    majority’s conclusion that the defendants are entitled
    to summary judgment on the claims relating to their
    discretionary acts ‘‘because there is insufficient evi-
    dence in the record from which a jury reasonably could
    conclude that it was apparent to the defendants that
    there was a risk of imminent harm because students
    arriving by bus were crossing Norwich Avenue before
    the start of the school day.’’ In my view, the circum-
    stances existing in this case present a classic question
    of fact for the jury. Furthermore, since the trial court
    used a standard that we no longer employ and relied
    upon cases that we have now disavowed, at the very
    least, I would remand the present case for another hear-
    ing on the motion for summary judgment to determine
    whether the identifiable person-imminent harm excep-
    tion to the doctrine of governmental immunity
    should apply.3
    I disagree, in particular, with the majority’s represen-
    tation that this case should not be remanded for a new
    hearing on the motion for summary judgment because
    its ‘‘decision . . . does not rest on the plaintiff’s failure
    to satisfy the imminency prong of the identifiable per-
    son-imminent harm exception but, rather, on his failure
    to satisfy the apparentness prong of the exception,
    the requirements of which have not changed since the
    commencement of this action.’’ (Emphasis in original.)
    See footnote 36 of the majority opinion. First, in grant-
    ing the defendants’ motion for summary judgment in
    the present case, the trial court specifically concluded
    that the plaintiff had not established an imminent harm
    and did not focus on the apparentness prong. Specifi-
    cally, the trial court concluded that ‘‘the risk of an
    accident at the subject intersection in the present case
    may have been substantial, but it was ongoing and con-
    tinuous, rather than imminent and discrete. An injury
    at the subject intersection could have occurred at any
    time or not at all.’’ Second, in Haynes v. Middletown,
    
    314 Conn. 303
    , 322–23, 
    101 A.3d 249
    (2014), which was
    decided after the trial court granted summary judgment
    in the present case, we clarified that ‘‘the proper stan-
    dard for determining whether a harm was imminent is
    whether it was apparent to the municipal defendant
    that the dangerous condition was so likely to cause
    harm that the defendant had a clear and unequivocal
    duty to act immediately to prevent the harm.’’ Accord-
    ingly, I would conclude that, under Haynes, appar-
    entness and imminency are inextricably linked. Third,
    in Edgerton v. Clinton, 
    311 Conn. 217
    , 238–39, 
    86 A.3d 437
    (2014), which was also decided after the trial court
    granted the motion for summary judgment in the pres-
    ent case and is cited by the majority, we clarified the
    apparentness standard. Specifically, in Edgerton, we
    explained that the question is whether the government
    official ‘‘was or should have been aware that her acts
    or omissions likely would have subjected [the plaintiff]
    to imminent harm.’’ 
    Id., 239. Therefore,
    on the basis of
    the trial court’s decision and the changes in the law
    after the decision in the present case, I would conclude
    that, at a minimum, this case should be remanded to
    the trial court for a new hearing on the motion for
    summary judgment that would provide the parties the
    opportunity to present evidence in light of the clarified
    standard for imminent harm.
    The majority places the burden of proof on the plain-
    tiff in the present case. Specifically, the majority
    explains that ‘‘[t]he issue in this case is whether there
    is sufficient evidence for a jury reasonably to conclude
    that the school was aware that students were crossing
    Norwich Avenue in violation of school policy after
    getting off the bus on school property and before the
    start of the school day.’’ (Emphasis in original.) I dis-
    agree with that understanding of the plaintiff’s burden
    at the summary judgment stage. It is well established
    that ‘‘[i]n seeking summary judgment, it is the movant
    who has the burden of showing the nonexistence of
    any issue of fact. The courts are in entire agreement
    that the moving party for summary judgment has the
    burden of showing the absence of any genuine issue
    as to all the material facts, which, under applicable
    principles of substantive law, entitle him to a judgment
    as a matter of law. The courts hold the movant to a
    strict standard. To satisfy his burden the movant must
    make a showing that it is quite clear what the truth is,
    and that excludes any real doubt as to the existence of
    any genuine issue of material fact. . . . As the burden
    of proof is on the movant, the evidence must be viewed
    in the light most favorable to the opponent. . . . When
    documents submitted in support of a motion for sum-
    mary judgment fail to establish that there is no genuine
    issue of material fact, the nonmoving party has no obli-
    gation to submit documents establishing the existence
    of such an issue.’’ (Internal quotation marks omitted.)
    State Farm Fire & Casualty Co. v. Tully, 
    322 Conn. 566
    , 573, 
    142 A.3d 1079
    (2016).
    In the present case, the majority concludes that ‘‘the
    plaintiff does not identify any facts in the record that
    would have made it apparent to the defendants that
    students arriving by bus were crossing Norwich Avenue
    before the start of school.’’ Although the majority
    acknowledges that the plaintiff presented evidence by
    way of an affidavit stating that he crossed Norwich
    Avenue every day after getting off the bus and that many
    other students did the same, and deposition testimony
    from another student, Alexander Lily, stating that cross-
    ing the street before the start of school was ‘‘a normal
    thing’’ to do, the majority states this evidence is ‘‘insuffi-
    cient to create a genuine issue of material fact with
    respect to this issue.’’ I disagree. The majority’s analysis
    places the burden on the plaintiff and does not view
    the evidence in the light most favorable to the opponent.
    In the present case, the majority does not hold the
    movant to a ‘‘strict standard,’’ and does not require the
    movant to ‘‘make a showing that it is quite clear what
    the truth is . . . .’’ (Internal quotation marks omitted.)
    State Farm Fire & Casualty Co. v. 
    Tully, supra
    , 573.
    To the contrary, the majority seems to hold the plaintiff
    to a strict standard and require him to make a showing
    of what the truth is in order to avoid summary judgment.
    As I explained previously in this opinion, Haynes v.
    
    Middletown, supra
    , 
    314 Conn. 303
    , established a new
    standard for establishing identifiable person-imminent
    harm exception to the doctrine of governmental immu-
    nity. In Haynes, we explained that ‘‘the proper standard
    for determining whether a harm was imminent is
    whether it was apparent to the municipal defendant
    that the dangerous condition was so likely to cause
    harm that the defendant had a clear and unequivocal
    duty to act immediately to prevent the harm.’’ 
    Id., 322– 23.
    In doing so, we explicitly overruled Burns v. Board
    of Education, 
    228 Conn. 640
    , 
    638 A.2d 1
    (1994), and
    Purzycki v. Fairfield, 
    244 Conn. 101
    , 
    708 A.2d 937
    (1998), ‘‘to the extent that they adopted a different stan-
    dard.’’ Haynes v. 
    Middletown, supra
    , 323.
    The plaintiff in Haynes was a high school student
    who had engaged in horseplay in the boys’ locker room,
    in violation of a school rule, during the five minute
    interval between classes when the locker rooms were
    open so that students could change their clothes before
    or after gym class. 
    Id., 308 and
    n.3. He suffered a cut
    on his arm when he was pushed against the jagged edge
    of a broken locker that had been in that condition for
    seven months. 
    Id., 307–308. To
    establish the imminent
    harm exception, the plaintiff relied on evidence that the
    locker had been broken for seven months and school
    officials were aware that horseplay in the locker room
    was an ongoing problem. 
    Id., 325. Applying
    the newly
    developed test to the facts of Haynes, we reasoned as
    follows: ‘‘Although this evidence is far from compelling,
    we are unable to conclude that no reasonable juror
    could find that it was apparent to school officials that,
    in combination, the ongoing problem of horseplay in
    the locker room and the presence of the broken locker
    were so likely to cause an injury to a student that the
    officials had a clear and unequivocal duty to act immedi-
    ately to prevent the harm either by supervising the
    students while they were in the locker room to prevent
    horseplay or by fixing the broken locker.’’ 
    Id., 325. Although
    we stated that the evidence was thin, and
    there was no evidence that school officials were aware
    of the broken locker, we concluded that the case had
    to be remanded so that a jury could determine whether
    the plaintiff had established the imminent harm excep-
    tion. 
    Id., 307. In
    other words, we concluded in Haynes
    that the issue of whether the plaintiff had met its burden
    of establishing the identifiable person-imminent harm
    exception could not be decided as a matter of law on
    the basis of the facts contained within the record.
    In light of our reasoning in Haynes, I would similarly
    conclude that summary judgment was not proper in the
    present case, and that a jury must determine whether
    the plaintiff had established the identifiable person-
    imminent harm exception. Indeed, unlike in Haynes,
    in the present case the evidence established that school
    officials knew of the risk to student safety posed by the
    busy intersection. Specifically, McCubrey, the school’s
    assistant principal, testified that there was a risk to
    student safety in the area of Norwich Avenue where it
    intersects with the entrance of the school. He testified
    that ‘‘sometimes the traffic on Norwich Avenue would
    be to the extent that we would be concerned about
    student safety crossing that street.’’ The evidence also
    established that the school had a policy requiring that
    two staff members be assigned to the area every morn-
    ing in order to ensure that students would go directly
    into school from the bus. The evidence presented also
    created a genuine issue of material fact as to whether
    on the morning that the plaintiff was injured, there were
    any staff members performing this duty. Accordingly,
    I would conclude that it is proper for the jury to deter-
    mine whether it was so apparent to school officials that
    the lack of supervision posed a risk of imminent harm
    to the students.
    In the present case, as in Haynes, the trial court
    determined that, as a matter of law, the plaintiff could
    not satisfy the requirements for the identifiable person-
    imminent harm exception because the dangerous condi-
    tion was not temporary, and the risk of getting hit by
    a car was the sort of harm that could occur at anytime.
    In Haynes, we reversed the decision of the trial court
    granting summary judgment to the municipal defen-
    dant. Haynes v. 
    Middletown, supra
    , 
    314 Conn. 307
    . I
    concurred in the result in Haynes, but suggested that
    the test should be whether the harm ‘‘was, or should
    have been, apparent to the municipal defendant that
    the dangerous condition was so likely to cause harm
    in the near future that the defendant had a clear and
    unequivocal duty to act to prevent the harm.’’ 
    Id., 338. The
    majority responded that ‘‘[b]ecause the question
    of whether the standard is subjective or objective is
    not before us, we express no opinion on it.’’ 
    Id., 323 n.15.
    Therefore, the proper standard to be applied in
    this case was expressed in Edgerton v. 
    Clinton, supra
    ,
    
    311 Conn. 217
    . In Edgerton, we recognized that ‘‘we
    have described the apparentness requirement as ‘would
    have made it apparent.’ We take this opportunity to
    clarify that the test is an objective one. We do not ask
    whether the government agent actually knew that harm
    was imminent but, rather, whether the circumstances
    would have made it apparent to a reasonable govern-
    ment agent that harm was imminent.’’ 
    Id., 231 n.14.
    As
    we ultimately decided in Haynes, however, the question
    of whether the defendants had a clear and unequivocal
    duty to act, in my view, is best left for a jury. Applying
    the objective standard test expressed in Edgerton to
    the facts in the present case, I would conclude that the
    trial court improperly granted summary judgment in
    favor of the defendants.
    The defendants knew about the dangerous intersec-
    tion and the need to protect students from its hazards.
    Specifically, the defendants knew that the intersection
    of the school driveway and Norwich Avenue, immedi-
    ately in front of the school, subjected students to the
    risk of being injured. Norwich Avenue is a state highway
    with a speed limit of forty miles per hour in front of
    the school. Despite the posted speed limit, vehicles
    passing in front of the school regularly traveled at
    speeds of approximately fifty miles per hour. Each
    morning, 1000 students arrived for school. Some of
    these students arrived on buses, some were driven by
    their parents, some drove themselves, and others
    arrived on foot. Students who walked to school used the
    crosswalk at the intersection to cross Norwich Avenue.
    There was no crossing guard or traffic agent at that
    intersection. On July 23, 2007, Karen A. Loiselle, the
    superintendent of schools of the town of Colchester,
    went to the municipal police commission and said that
    there was an immediate need for coverage at the inter-
    section. Three weeks later, the Board of Education of
    the Town of Colchester voted to hire a crossing traffic
    agent, but the actual hiring did not take place until after
    the plaintiff was injured.
    The school had a student supervision program. Staff
    members were assigned to bus duty where they were
    responsible for making sure that students who arrived
    by bus entered the school building immediately and did
    not leave school grounds. The purpose of the rule was
    student safety. The plaintiff’s affidavit indicates that
    school staff members were never at the bus port and
    were not present on the day of the accident. The undis-
    puted evidence shows that no one ever directed the
    plaintiff into school, and no one ever attempted to stop
    him from walking through school grounds or from
    crossing Norwich Avenue.
    On the basis of the foregoing facts, I would conclude
    that the trial court should not have granted the defen-
    dants’ motion for summary judgment on the ground
    that no reasonable juror could have found that the plain-
    tiff had established the identifiable person-imminent
    harm exception to governmental immunity. See Haynes
    v. 
    Middletown, supra
    , 
    314 Conn. 326
    (‘‘we conclude that
    the Appellate Court improperly upheld the ruling of the
    trial court granting the defendant’s motion to set aside
    the verdict in favor of the plaintiffs and to render judg-
    ment in favor of the defendant on the ground that no
    reasonable juror could have found that the plaintiffs had
    established the imminent harm to identifiable persons
    exception to governmental immunity’’). Specifically, I
    would conclude that a reasonable juror could determine
    that, if the school failed to follow its own policy of
    providing supervision at the bus port, despite being
    aware of the danger posed by the busy intersection,
    that the plaintiff established sufficient facts to satisfy
    the identifiable person-imminent harm exception to
    governmental immunity. See Hurley v. Heart Physi-
    cians, P.C., 
    278 Conn. 305
    , 323–24, 
    898 A.2d 777
    (2006)
    (‘‘we conclude that whether [the] actions [of the defen-
    dant’s agent] were in derogation of the warnings in the
    technical manual was an issue of material fact sufficient
    to defeat the defendant’s motion for summary
    judgment’’).
    I would conclude, as we did in Haynes, that the
    determination of whether the facts satisfy the require-
    ments of the identifiable person-imminent harm excep-
    tion is an issue for the jury. Indeed, I see little difference
    between the lack of supervision in the locker room in
    Haynes, and the alleged lack of supervision in the bus
    port at the school in the present case. Both issues
    involve a question of child safety. This case may even
    be stronger than Haynes because, in the present case,
    there was an established policy requiring the presence
    of two staff members in the morning to protect the
    students, unlike the case in Haynes wherein there was
    no policy requiring supervision of the students in the
    locker room. See Haynes v. 
    Middletown, supra
    , 
    314 Conn. 309
    . Both cases involve high school students who
    were engaged in activities that violate the rules of the
    school. In Haynes, the jury took the plaintiff’s actions
    into account and reduced the verdict. See 
    id. The other
    difference between the two cases is that, in the present
    case, the actual injury occurred just off of the school
    property. The allegation of imminent harm, however,
    occurred through the lack of supervision while the
    plaintiff was on school property. In light of these facts,
    I agree with the majority that we should not endorse a
    rule stating that there is no liability because the accident
    occurred off of school property.
    As I explained previously in this concurring and dis-
    senting opinion, I agree with the majority’s conclusion,
    contrary to the trial court, that the plaintiff ‘‘remained
    a member of the identifiable class of foreseeable victims
    to the extent that the defendants had a duty to supervise
    him while under their custody and control.’’ Accord-
    ingly, the defendants owed him a duty of care to protect
    him from imminent harm. See Haynes v. 
    Middletown, supra
    , 
    314 Conn. 322
    –23. This duty to supervise students
    is supported by the legislative history of General Stat-
    utes § 52-557n. See Elliott v. Waterbury, 
    245 Conn. 385
    ,
    399, 
    715 A.2d 27
    (1998) (‘‘[the] rejection of the notion
    of immunity for teachers and their municipal employers
    when their negligent supervision allowed students to
    harm themselves or each other is one of the few clear
    manifestations of legislative intent that emerges from
    the murky legislative history of the municipal liability
    section of the Tort Reform Act of 1986’’).
    Additionally, in the present case, the defendants
    undertook the duty to supervise students when they
    arrived at school on school buses. Specifically, Jeffry
    P. Mathieu, the school’s principal, was required to pro-
    vide for the supervision of students in school hallways
    and on school grounds under the school’s supervision
    program. The supervision program required two staff
    members to serve on bus duty each morning. These staff
    members were provided written and oral instructions
    informing them of their supervisory duties. In particu-
    lar, staff members were required to occupy visible posi-
    tions at two entrances located near the bus port and
    enforce all school rules, including the rule that students
    had to immediately enter the school building when they
    arrived on buses and could not leave school grounds.
    The school’s administrators periodically walked the
    school grounds to ensure that staff members were at
    their posts and performing their duties, and Mathieu
    made inquiries to ensure that student supervision was
    performed according to plan. The plaintiff claims that
    if staff members had performed their duties, he would
    have been directed safely inside the school building
    on the morning in question. Instead, he walked across
    Norwich Avenue and sustained injuries as the result of
    being struck by a car. In my view, pursuant to Haynes,
    a genuine issue of material fact existed as to whether
    a jury reasonably could have inferred from the evidence
    that the dangerous traffic condition was apparent to
    the defendants and that, in the absence of supervision,
    a risk of imminent harm was posed to the students
    arriving on the bus that morning.
    I respectfully disagree with the majority’s conclusion
    that, as a matter of law, the harm to the plaintiff in the
    present case was not imminent because ‘‘the plaintiff
    does not identify any facts in the record that would
    have made it apparent to the defendants that students
    arriving by bus were crossing Norwich Avenue before
    the start of school.’’ As I have explained previously in
    this opinion, the issue is whether there is a genuine
    issue of material fact that it was apparent to the defen-
    dants that students arriving by bus would be in danger
    if not properly supervised after arriving at school. I
    would respectfully assert that, in narrowing the issue
    so as to require the plaintiff to prove that it was apparent
    to the defendants that students arriving by bus would
    cross Norwich Avenue, the majority seems to be focus-
    ing on the plaintiff’s contributory negligence. Contribu-
    tory negligence, however, is a matter for the jury to
    decide. It is not a basis for deciding that the identifiable
    person-imminent harm exception does not apply.
    Indeed, contributory negligence existed in Haynes, and
    it resulted in a significantly reduced verdict, but it had
    no impact on whether the identifiable person-imminent
    harm exception applied. Haynes v. 
    Middletown, supra
    ,
    
    314 Conn. 309
    . Contributory negligence and its impact
    on an award of damages are matters for the jury to
    determine.
    The majority concludes that ‘‘[t]he issue in this case
    is whether there is sufficient evidence for a jury reason-
    ably to conclude that the school was aware that stu-
    dents were crossing Norwich Avenue in violation of
    school policy after getting off the bus on school prop-
    erty and before the start of the school day. There is no
    such evidence.’’ (Emphasis omitted.) I disagree.
    Although all of the defendants who were deposed testi-
    fied that they had no knowledge of students crossing
    Norwich Avenue after getting off the bus, the plaintiff
    has established a genuine issue of material fact as to
    whether the defendants knew or should have known
    that their acts or omissions likely would have subjected
    the plaintiff to imminent harm. Specifically, the evi-
    dence demonstrated that the school had a policy of
    posting staff members at the bus port and that the
    purpose of that policy was to ensure that students were
    safe and went into school when they got off the bus.
    Furthermore, the plaintiff signed an affidavit indicating
    that many students left school property in the morning
    after getting off of buses and crossed Norwich Avenue.
    Taking this evidence in the light most favorable to the
    plaintiff, I would conclude that a reasonable juror could
    have concluded that the defendants knew or should
    have known that there was a risk that students would
    leave school property and cross Norwich Avenue in the
    morning before the start of school. Accordingly, the
    trial court should not have granted summary judgment
    in the present case.
    In the alternative, I would reverse the trial court’s
    award of summary judgment as it related to the defen-
    dants’ discretionary acts and remand this case to the
    trial court for a new hearing so that the correct legal
    standard may be applied. Ordinarily, the trial court’s
    failure to apply the correct legal standard results in a
    remand to the trial court for application of the correct
    standard. In deciding that a remand is appropriate, we
    have previously reasoned as follows: ‘‘[A] party is gener-
    ally entitled to a new trial when, on appeal, a different
    legal standard is determined to be required, unless we
    conclude that, based on the evidence, a new trial would
    be pointless. . . . We presume that any insufficiency
    in proof was caused by the subsequent change in the law
    . . . [and] not the [party’s] failure to muster evidence.’’
    (Citation omitted; internal quotation marks omitted.)
    McDermott v. State, 
    316 Conn. 601
    , 611, 
    113 A.3d 419
    (2015). Similarly, in the present case, I would conclude
    that any insufficiency in proof by the plaintiff was
    caused by the subsequent change in the law and that
    he should be given the chance to muster evidence in
    light of the new legal standard.
    Additionally, a remand for a new hearing is proper
    in the present case because the trial court’s analysis is
    based on two propositions that we specifically disa-
    vowed in Haynes. First, the trial court explained that
    ‘‘[t]he present case also does not fall within the limited
    circumstances under which imminence may be estab-
    lished. This is not a case that involves a discrete place
    and time at which the harm could have occurred. Even
    assuming that the injury occurred in a discrete place
    and thus was limited in geographical scope, the injury
    was not limited in duration, but could have occurred
    at any time. Contrary to the arguments of the plaintiff,
    it could have occurred before, during, or after school
    hours, and the ‘condition’ causing the injury, i.e., a dan-
    gerous intersection, cannot be considered to have been
    temporary. . . . Here . . . the harm could have
    occurred to any student that left school premises at any
    time and attempted to cross the subject intersection.’’
    (Citations omitted.) Second, the trial court further rea-
    soned as follows: ‘‘Here, there is nothing indicating that
    the risk of harm was imminent. The alleged danger was
    not limited to a discrete, nonrecurring period of time,
    such as is the case with a danger that arises from a
    particular patch of ice, nor was the danger limited to
    a discrete yet recurring and predictable . . . period of
    time, as when young children are left unsupervised for
    a half hour period at the same time each day.’’ Finally,
    the trial court concluded that ‘‘[a]n injury at the subject
    intersection could have occurred at any time or not at
    all.’’ In Haynes, however, we explicitly stated ‘‘that the
    portion of this court’s decision in Burns, on which
    Purzycki relied, holding that a harm is imminent when
    the condition causing the risk of harm is temporally
    limited and the risk of harm is ‘significant and foresee-
    able’ should be overruled.’’ Haynes v. 
    Middletown, supra
    , 
    314 Conn. 316
    . In Haynes, we further explained
    that ‘‘[o]ur statement in Evon v. Andrews, [
    211 Conn. 501
    , 508, 
    559 A.2d 1131
    (1989)], that a harm is not
    imminent if it ‘could have occurred at any future time
    or not at all’ was not focused on the duration of the
    alleged dangerous condition, but on the magnitude of
    the risk that the condition created.’’ (Emphasis in origi-
    nal.) Haynes v. 
    Middletown, supra
    , 322.
    Further, in the present case, the trial court held that
    ‘‘the plaintiff in the present case is not an elementary
    school student to which the same duty of supervision
    is owed.’’ In support of this proposition, the trial court
    cited Heigl v. Board of Education, 
    218 Conn. 1
    , 8, 
    587 A.2d 423
    (1991), in which this court stated the following:
    ‘‘Neither the General Statutes nor our decisional law
    has ever stated that a board of education has a specific
    duty to supervise high school students. Even if such a
    duty exists, actions pursuant to such a duty are discre-
    tionary if they are performed wholly for the direct bene-
    fit of the public . . . .’’ (Internal quotation marks
    omitted.) We have, however, subsequently explained
    that ‘‘[i]n Burns . . . this court distinguished Heigl on
    the ground that Heigl had ‘turned on the public/private
    duty distinction of the public duty doctrine,’ and did
    not involve the ‘foreseeable class of victim exception
    to governmental immunity, which applies irrespective
    of whether the official’s duty is technically public or
    private in nature.’ This court held in Burns that school
    officials do have a general duty ‘to protect the pupils
    in [their] custody from dangers that may reasonably be
    anticipated. . . . Burns did not limit this holding to
    grade school students. Accordingly, we conclude that
    Heigl is inapplicable when the plaintiff has made a
    colorable claim that the defendant’s failure to supervise
    a high school student has subjected the student to immi-
    nent harm.’’ (Citation omitted; footnotes omitted.)
    Haynes v. 
    Middletown, supra
    , 
    314 Conn. 314
    –15. In
    doing so, we emphasized that the fact finder could take
    into account all of the surrounding facts and circum-
    stances in order to determine if a harm was imminent.
    
    Id., 315 n.7.
    Therefore, this justification for granting
    the defendants’ motion for summary judgment in the
    present case was specifically rejected in Haynes.
    On the basis of the foregoing, I would conclude that,
    at a minimum, this case should be remanded to the trial
    court for a new hearing on the defendants’ motion for
    summary judgment in which both sides would be able
    to prepare their case in light of our decisions in Haynes
    and Edgerton.
    Therefore, for the reasons stated previously in this
    opinion, I respectfully concur and dissent.
    1
    The remaining plaintiff in the present case, Kiersten Strycharz, is not a
    party to this action in her individual capacity. See footnote 1 of the majority
    opinion. For the sake of simplicity, I refer to Joseph Strycharz as the plain-
    tiff hereinafter.
    2
    Although there are other defendants in the present case; see footnote 2
    of the majority opinion; only Elizabeth A. Ciccione, Andrew C. George, Jr.,
    William D. Hettrick, Linda M. Hodge, Karen A. Loiselle, Jeffry P. Mathieu,
    John Mazzarella, Dale J. McCubrey, Ross Sward, and the town of Colchester
    are relevant to the present appeal. For the sake of simplicity, I refer to these
    parties collectively as the defendants and individually by name throughout
    this opinion.
    3
    I agree with both the facts and the standard of review set forth by the
    majority. For the sake of clarity, I provide additional facts where necessary
    for my analysis.
    

Document Info

Docket Number: SC19507

Filed Date: 11/15/2016

Precedential Status: Precedential

Modified Date: 11/8/2016