Strycharz v. Cady , 323 Conn. 548 ( 2016 )

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JOSEPH STRYCHARZ ET AL. v.
RICHARD D. CADY ET AL.
(SC 19507)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued November 6, 2015—officially released November 15, 2016
Albert L. J. Speziali, with whom, on the brief, were
Thomas J. Keramidas and Paul Costa, for the appel-
lants (plaintiffs).
Scott R. Ouellette, with whom, on the brief, were
James G. Williams and Ryan J. McKone, for the appel-
lees (defendant town of Colchester et al.).
Opinion
PALMER, J. The named plaintiff, Joseph Strycharz,1
commenced this action against the defendants Karen
A. Loiselle, the superintendent of schools for the town
of Colchester, Jeffry P. Mathieu, the principal of Bacon
Academy (school), a public high school in the town of
Colchester, Dale J. McCubrey and Ross Sward, assistant
principals, William D. Hettrick, John Mazzarella, Eliza-
beth A. Ciccione, Linda M. Hodge, and Andrew C.
George, Jr., members of the Board of Education of the
Town of Colchester (board), and the town of Colchester
(town), among others,2 after he was struck by a vehicle
at the intersection of Norwich Avenue and the school’s
driveway on the morning of September 20, 2007. The
plaintiff sought damages from the defendants for negli-
gent supervision of school staff and students during
school hours and indemnification from the town for
those defendants’ negligence pursuant to General Stat-
utes (Rev. to 2007) § 7-465.3 The town, Loiselle, Mathieu,
McCubrey, Sward, Hettrick, Mazzarella, Ciccione,
Hodge, and George, among others, moved for summary
judgment, claiming, inter alia, that governmental immu-
nity shielded them from liability.4 The trial court granted
the motion with respect to those defendants as to the
counts directed at them after concluding that their duty
to supervise school staff and students was discretion-
ary, and, as a consequence, they were shielded from
liability by governmental immunity. Although the trial
court concluded that the responsibilities of Mathieu,
McCubrey and Sward also included a ministerial duty to
assign school staff to supervise students during school
hours, the court also determined that they, too, were
entitled to summary judgment because the undisputed
evidence established as a matter of law that they had
discharged that ministerial duty. On appeal,5 the plain-
tiff claims that the trial court improperly granted the
motion for summary judgment. We agree with the plain-
tiff that the trial court improperly granted the motion
for summary judgment as to McCubrey and Sward with
respect to the plaintiff’s claim that they breached their
ministerial duty to assign school staff to supervise stu-
dents during school hours. We uphold the granting of
the motion for summary judgment in all other respects.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. The
school is located on Norwich Avenue in Colchester.
Norwich Avenue is a two lane, bidirectional, undivided
state highway approximately thirty feet wide with an
average daily traffic volume of approximately 5600 vehi-
cles in front of the school. Although the posted speed
limit where the school is located was forty miles per
hour, approximately 15 percent of vehicles travelled at
speeds near or above fifty miles per hour.6 To enter or
leave school property, pedestrians used a crosswalk
located at the intersection of Norwich Avenue and the
school’s driveway entrance. Because the school’s stu-
dent body had grown to about 1000 by 2006, the inter-
section was the site of heavy traffic on school day
mornings and at dismissal time.7 The entire student
body arrived each morning in a span of approximately
twenty minutes, resulting in heavy vehicular traffic from
school buses, student drivers, and parent drivers who
were dropping off their children.8 Despite the heavy
traffic and congestion, the intersection had neither a
traffic light nor a person directing traffic, and the rela-
tively small number of students who walked to and
from school had to traverse Norwich Avenue unas-
sisted.
For some time, the safety of the intersection in front
of the school had been a matter of concern for the town
and school administrators. In light of these concerns,
in the spring of 2006, Loiselle and Jenny Contois, the
town’s first selectperson, organized a committee of
school and town administrators and local and state
police officers to address traffic and pedestrian safety at
the intersection. The committee undertook an initiative
that called for, inter alia, the cutting and trimming of
trees to improve sight lines at the intersection, continu-
ing education of student drivers about safe driving, peti-
tioning the state to install a traffic signal, and continuing
regular police enforcement of speed limits in the vicin-
ity. In addition, the iniative expressly directed Loiselle
to investigate options for hiring a traffic agent for the
intersection. Sometime after the committee was
formed, Loiselle, at the request of the board, contacted
the Connecticut Interlocal Risk Management Agency
(CIRMA), an insurance carrier for the board and the
town, and requested, among other things, that it assess
the need for a traffic agent at the intersection. In
response to Loiselle’s request, Jeffrey Rogers, CIRMA’s
risk control consultant, assessed the intersection and
made several recommendations, including a recommen-
dation to use a trained traffic agent and to install signs
at the entrances to the crosswalk that would advise
pedestrians not to enter the roadway until it was safe
to do so. Thereafter, the board reviewed CIRMA’s rec-
ommendations and, on June 19, 2007, instructed Lois-
elle to contact the town’s police commission ‘‘regarding
a shared responsibility for the crossing guard/traffic
agent.’’ When Loiselle addressed the police commission
on July 23, 2007, she indicated that there was ‘‘an imme-
diate need’’ for a crossing guard at the intersection. The
police commission agreed that a traffic agent at the
intersection was needed but informed the board that
the town would have to shoulder the cost. On August
15, 2007, the board voted to hire a traffic agent for the
intersection, with one member noting that ‘‘this was a
small investment for . . . student safety.’’ The traffic
agent could not commence work, however, until the
new budget was approved in October, 2007.
In the meantime, the school maintained an ongoing
student supervision program designed to enhance stu-
dent safety. In accordance with that program, Mathieu
was responsible for assigning school staff to supervi-
sory duties throughout the school. As part of the pro-
gram, two staff members were assigned, on a weekly
rotating basis, to the bus port, both in the morning and
in the afternoon. One of the reasons for the morning
duty was to ensure that arriving students did not leave
the school premises and safely proceeded directly into
the school building. Instead of assigning school staff
members to their posts personally, Mathieu delegated
that duty to McCubrey.9 According to McCubrey’s depo-
sition testimony, she drafted a duty roster each summer
before the start of the school year and then provided
it to school staff members. The roster informed staff
members about their assigned dates, times and respec-
tive posts, and advised them of expectations and
responsibilities with regard to their duties, including
the bus port duty.10
In the summer before the school year commencing
in the fall of 2007, however, McCubrey was out of work
on medical leave. As a result, McCubrey prepared the
outlines for the duty roster and submitted them to
Sward’s office, where, as McCubrey explained, the out-
lines may have been ‘‘tweaked’’ further.11 She was
unable to identify, however, who had received the out-
lines or what happened to them following their submis-
sion to Sward’s office. Nevertheless, McCubrey insisted,
both in her responses to the plaintiff’s interrogatories
and at her deposition, that the roster had been finalized
and distributed to the staff by the beginning of the
school year.12 No copies of the outlines or the actual
roster could be located, however. In addition, the school
was unable to produce the names of persons assigned
to bus duty on the day of the accident or during the
two weeks immediately preceding it.
The plaintiff followed a regular routine on school
days beginning on September 5, 2007, the first day of
the school year, and continuing until the day of the
accident on September 20, 2007. The plaintiff took the
school bus every morning and arrived at school at 7:15
a.m. On most days, upon his arrival at the school’s bus
port, the plaintiff would walk back to the crosswalk,
traverse Norwich Avenue to leave school grounds, and
smoke a cigarette before returning back to the school
to attend classes.13 During that two week period culmi-
nating on September 20, 2007, the plaintiff observed
‘‘many’’ other students who had taken the bus to school
smoking cigarettes in the same area. At no time, how-
ever, did he see anyone from the school staff at the bus
port during that time, and no one ever directed him to
go into the school building or attempted to stop him
from leaving school grounds.
On the morning of September 20, 2007, the plaintiff,
who had just begun his freshman year, took the bus to
school, and, while on the bus, he and his friend, Alexan-
der Lily, decided to have a cigarette before going to
class. The boys agreed to leave school grounds by cross-
ing to the other side of Norwich Avenue even though
they knew that doing so without explicit authorization
violated school policy. Once at the school’s bus port,
the plaintiff and Lily conversed momentarily and then
proceeded directly to the crosswalk at the intersection
of the school’s driveway and Norwich Avenue. As the
plaintiff was crossing Norwich Avenue, however, he
was struck by a vehicle driven by the named defendant,
Richard D. Cady. According to the plaintiff, no school
faculty or staff members were visible at the bus port,
and no one sought to prevent him from leaving
school property.
The plaintiff thereafter commenced this action in
October, 2009, asserting that his injuries were caused
by Cady’s negligence and the negligence of certain other
defendants. With respect to the board members, the
plaintiff alleged, inter alia, that they had breached their
duty to provide a safe school setting in accordance with
General Statutes (Rev. to 2007) § 10-220.14 Specifically,
the plaintiff alleged that the board members had failed
(1) to implement rules and regulations pertaining to
school safety, (2) to take steps to ensure that students
did not leave school grounds after arriving at school in
the morning, (3) to assign an agent to monitor and direct
pedestrian and vehicular traffic at the intersection, and
(4) to provide warnings, signage or lights, or otherwise
to take steps to give notice to students of the danger
of motor vehicle traffic at the intersection.
With respect to Loiselle, the plaintiff alleged that she
had breached her duty to enforce the rules governing
student safety as required by policy 5142 (a) of the
Colchester Public Schools Policies, Regulations and
Bylaws (School Policies and Regulations).15 In particu-
lar, the plaintiff alleged that Loiselle failed (1) to imple-
ment rules and regulations in accordance with that
policy, (2) to inspect and discover safety hazards on
school grounds, (3) to properly supervise administra-
tors and staff, (4) to assign a traffic agent at the intersec-
tion, and (5) to provide adequate notice to students
concerning the motor vehicle traffic at the intersection.
With respect to Mathieu, McCubrey and Sward, the
plaintiff, in addition to repeating the averments leveled
against Loiselle, alleged that they had breached their
duty to protect students from foreseeable dangers. In
particular, the plaintiff alleged that Mathieu, McCubrey
and Sward had failed (1) to execute their nondiscretion-
ary ministerial duty to assign staff members to bus duty,
and (2) to ensure that the assigned staff members did
in fact report for and carry out that bus duty. Finally,
the plaintiff sought indemnification from the town pur-
suant to § 7-465.16
Certain defendants moved for summary judgment;
see text accompanying footnote 4 of this opinion;
asserting that they were entitled to governmental immu-
nity under General Statutes § 52-557n (a) (2) (B).17 In
particular, the defendants contended that they were
shielded from liability under the doctrine of governmen-
tal immunity because their allegedly negligent acts
involved the exercise of judgment or discretion. Those
defendants also argued that the plaintiff could not sat-
isfy the only potentially applicable exception to that
doctrine—the identifiable person-imminent harm
exception—because he could neither establish that he
was an identifiable person nor demonstrate that any
potential harm was imminent. Finally, insofar as the
plaintiff alleged that Mathieu, McCubrey and Sward also
had breached a ministerial duty, Mathieu, McCubrey
and Sward maintained that the plaintiff presented no
evidence to establish a breach of any such duty.
The trial court granted the motion for summary judg-
ment. With respect to the plaintiff’s negligence claims
against the members of the board, the court concluded
that their duty to provide a safe school environment
pursuant to § 10-220 (a) (4) was discretionary in nature.
The court reached its conclusion because the plaintiff
could not point to ‘‘any rule, policy, or directive that
limits the board’s discretion by prescribing the manner
in which [the board members] must provide such a
setting.’’ The court reached a similar conclusion with
respect to the plaintiff’s claims against Loiselle. Specifi-
cally, the court explained that there was no regulation
or policy that limited Loiselle’s ‘‘discretion by prescrib-
ing the manner in which she must provide a safe inter-
section or supervise morning arrival.’’ Accordingly, the
court found that the board members and Loiselle were
engaged in discretionary acts and, therefore, entitled
to governmental immunity unless the plaintiff could
establish an exception to that immunity.
The court, however, also agreed with the contention
of the board members and Loiselle that the identifiable
person-imminent harm exception to governmental
immunity did not apply in the present case. First, the
court concluded that the plaintiff could not satisfy the
identifiable person element of the exception because
the plaintiff, by voluntarily leaving school grounds, had
lost ‘‘his . . . status as a member of an identifiable
class of victims . . . .’’ In particular, the court deter-
mined that, in order for the plaintiff to be considered
an identifiable person for purposes of the exception,
he had to establish that he was ‘‘compelled to be present
at the [time when and the] place where the injury
occurred . . . because that is where and when the per-
sons charged with protecting [the plaintiff] from harm
would expect [him] to be.’’ Although the court deter-
mined that the plaintiff became a member of an identifi-
able class of foreseeable victims when he arrived at
school on the school bus, it nonetheless concluded that
the plaintiff had relinquished his status as a member
of that class when he left school property of his own
accord.
The court further concluded that, even if the plaintiff
was an identifiable victim, the intersection in question
did not constitute an imminent harm. Specifically, the
court concluded that potential harm was not imminent
because it was not limited to a discrete time during
which an injury could have occurred. In reaching that
conclusion, the trial court relied on the principle articu-
lated by this court in Burns v. Board of Education, 228
Conn. 640, 650, 638 A.2d 1 (1994), overruled in part by
Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249
(2014), in which we held that an icy patch on a school
walkway presented an imminent harm to students
because the accident could not have occurred at any
time in the future but was limited temporally and geo-
graphically. The trial court then concluded that,
because the risk of an accident at the intersection in
question, although possibly substantial, was ‘‘ongoing
and continuous, rather than imminent and discrete,’’
the present case was governed by Evon v. Andrews,
211 Conn. 501, 559 A.2d 1131 (1989), in which this court
determined that harm was not imminent if it ‘‘could
have occurred at any future time or not at all.’’ Id., 508.
Accordingly, the trial court concluded that, because the
plaintiff could not satisfy either prong of the identifiable
person-imminent harm exception, it did not apply in
this case.
In light of its determination, the trial court then pro-
ceeded to examine whether there was a genuine issue
of material fact with respect to the violation of a ministe-
rial duty on the part of Mathieu, McCubrey and Sward.
With respect to Mathieu, the court first determined that
he had a ministerial duty to assign staff members to
bus duty pursuant to school policy. The court also con-
cluded, however, that Mathieu had fulfilled this duty
by delegating to McCubrey the responsibility to create
the bus duty roster.18 The court further determined that
both McCubrey and Sward also had fulfilled their minis-
terial duty to assign staff members to bus duty by creat-
ing the actual roster. With respect to the plaintiff’s
allegations concerning the duty to ensure that staff
members were in fact present at the bus port each day,
the court concluded that any such duty was discretion-
ary in nature because the plaintiff had presented no
evidence of a particular regulation, policy or directive
that dictated specifically how Mathieu, McCubrey and
Sward were required to discharge the duty.19 Finally, on
the basis of its conclusion that the individual defendants
were entitled to summary judgment as a matter of law
on all claims, the court further determined that the
town also was entitled to summary judgment as a matter
of law because the plaintiff’s claims against it were
derivative of his claims against the individual defen-
dants. This appeal followed.
On appeal, the plaintiff claims that the trial court (1)
misconstrued the nature of the ministerial duty owed
by Mathieu, McCubrey and Sward in concluding that it
was limited to the preparation of a bus duty roster only,
and (2) incorrectly determined that Mathieu, McCubrey
and Sward had fulfilled or adequately discharged their
ministerial duty to ensure that students were supervised
at the school bus port. The plaintiff further contends
that the trial court incorrectly concluded that (1) he
had relinquished his status as a member of the identifi-
able class of foreseeable victims when he voluntarily
left school property and was injured off school grounds,
and (2) the identifiable person-imminent harm excep-
tion to governmental immunity is inapplicable in the
present case as a matter of law. As to the latter, the
plaintiff argues that our decision in Haynes v. Middle-
town, supra, 314 Conn. 303, which was issued during
the pendency of the present appeal, contradicts the trial
court’s conclusion that the harm at issue was not
imminent.20
With respect to the plaintiff’s first claim, we agree
that, with respect to Mathieu, McCubrey and Sward,
the trial court improperly limited the ministerial duty
at issue to the preparation of the bus duty roster
because that duty extends to ensuring that the roster
is distributed to and received by the appropriate staff
members. We also agree with the plaintiff that the trial
court incorrectly determined that McCubrey and Sward
satisfied that ministerial duty as a matter of law because
we are persuaded that there remains a genuine issue
of material fact as to whether the bus duty roster was
created and whether it was timely distributed to staff
members. We further conclude, however, that the trial
court correctly determined that Mathieu did, indeed,
satisfy his ministerial duty because he reasonably chose
to delegate responsibility for the bus duty roster to
McCubrey. With respect to the plaintiff’s second claim,
we conclude that, even though the plaintiff left school
property and was injured on a public road, he 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. We further
conclude, however, that the motion for summary judg-
ment was properly granted with respect to this claim
because there is insufficient evidence 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.21
I
We first address the plaintiff’s claim that the trial
court misconstrued the nature of the ministerial duty
owed by Mathieu, McCubrey and Sward insofar as the
court limited that duty to the preparation of a bus duty
roster. The plaintiff contends that limiting the duty in
that manner would effectively render it meaningless
without a corresponding ministerial duty to ensure that
the roster was distributed to staff members and that
they in fact performed their assignments. We agree with
the plaintiff that Mathieu, McCubrey and Sward had a
ministerial duty to prepare and to distribute the bus
duty roster to school staff members. We further con-
clude, however, that the duty to make sure that school
staff members were in fact present at their assigned
posts was discretionary.
It is well settled that municipal employees ‘‘are
immune from liability for negligence arising out of their
discretionary acts in part because of the danger that a
more expansive exposure to liability would cramp the
exercise of official discretion beyond the limits desir-
able in our society. . . . Therefore, [d]iscretionary act
immunity reflects a value judgment that—despite injury
to a member of the public—the broader interest in
having government officials and employees free to exer-
cise judgment and discretion in their official functions,
unhampered by fear of second-guessing and retaliatory
lawsuits, outweighs the benefits . . . from imposing
liability for that injury. . . . The hallmark of a discre-
tionary act is that it requires the exercise of judgment.
. . . In contrast, municipal [employees] are not
immune from liability for negligence arising out of their
ministerial acts, [which are] defined as acts to be per-
formed in a prescribed manner without the exercise of
judgment or discretion. . . .
‘‘Although the determination of whether official acts
or omissions are ministerial or discretionary is normally
a question of fact for the fact finder . . . there are
cases [in which] it is apparent from the complaint . . .
[that the nature of the duty] . . . turns on the character
of the act or omission complained of in the complaint.
. . . Accordingly, [when] it is apparent from the com-
plaint that the defendants’ allegedly negligent acts or
omissions necessarily involved the exercise of judg-
ment, and thus necessarily were discretionary in nature,
summary judgment is proper.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Coley
v. Hartford, 312 Conn. 150, 161–62, 95 A.3d 480 (2014).
Lastly, ‘‘[d]etermining whether it is apparent on the
face of the complaint that the acts complained of are
discretionary requires an examination of the nature of
the alleged acts or omissions.’’ (Internal quotation
marks omitted.) Id., 165.
With these principles in mind, we turn to the evidence
in the present case. In his complaint, the plaintiff alleged
that Mathieu, McCubrey and Sward had failed to exe-
cute their ministerial duty (1) to assign school staff
members to bus duty, and (2) to ensure that assigned
staff members actually reported to and adequately dis-
charged that duty pursuant to the student safety pro-
gram. To support his allegations with regard to the
existence and the scope of the ministerial duty, the
plaintiff relied on the deposition testimony of Loiselle,
who testified that Mathieu had a duty to assign school
staff members to different posts, including the bus port,
and that he lacked the discretion not to do so. Signifi-
cantly, however, Loiselle did not provide any testimony
with regard to the ministerial duty of Mathieu, McCu-
brey and Sward to ensure that school staff members
actually performed their assignments. We first conclude
that this testimony is sufficient to establish that
Mathieu, McCubrey and Sward had the ministerial duty
to assign school staff members to their respective posts.
See Gauvin v. New Haven, 187 Conn. 180, 186–87, 445
A.2d 1 (1982) (testimony of municipal official can estab-
lish nature of duty). We further conclude that, in order
to be meaningful, this duty necessarily must also
include a corresponding ministerial duty to distribute
the bus duty roster among staff members. See Soder-
lund v. Merrigan, 110 Conn. App. 389, 397, 955 A.2d
107 (2008) (‘‘[t]he issue is not whether the procedure
to vacate the warrant was mandatory, but whether it
was mandatory to vacate the warrant’’ [emphasis in
original]). After all, a bus duty roster by itself would
be useless if it is not distributed to those charged with
student supervision, informing them about their respec-
tive posts and schedule.
Second, although Loiselle’s testimony provided a suf-
ficient basis to conclude that school administrators had
the ministerial duty to assign staff members to monitor
students throughout the school, her testimony contains
no directive sufficient to support a finding that Mathieu,
McCubrey and Sward had the ministerial duty to ensure
that assigned staff members, once notified of their
responsibilities, actually reported to and adequately
discharged their assignments. Furthermore, the plaintiff
has not pointed to anything in the record that can be
construed as a directive establishing such a ministerial
duty. See Violano v. Fernandez, 280 Conn. 310, 323,
907 A.2d 1188 (2006) (ministerial acts are acts required
by city charter provision, ordinance, regulation, policy,
rule or other directive). The only evidence that the
plaintiff offers in support of his contention is Mathieu’s
attestation that he, as the school’s principal, ‘‘inquired
to ensure completion of the assigned task,’’ and that
school administrators ‘‘periodically walked the school
grounds’’ in order to ensure that staff members were
properly carrying out their assigned duties. That evi-
dence hardly supports the plaintiff’s argument; on the
contrary, the fact that school administrators engaged
in periodic compliance checks necessarily implies that
they exercised their judgment or discretion in deciding
where, when and in what manner to supervise school
staff members.
In the absence of any evidence establishing a ministe-
rial duty to ensure that staff members reported to their
posts and adequately discharged their assignments, the
crux of the plaintiff’s argument is that Mathieu, McCu-
brey and Sward were negligent in their general supervi-
sion of school employees. Although no Connecticut
appellate tribunal has had an opportunity to examine
whether general supervision of employees in a public
school setting is a discretionary or ministerial function,
several of our sister states have concluded that supervi-
sion of school personnel is a discretionary function.
See, e.g., Reece v. Turner, 284 Ga. App. 282, 286, 643
S.E.2d 814 (2007) (in Georgia, ‘‘decisions concerning
the supervision of students and school personnel are
considered discretionary’’); Marson v. Thomason, 438
S.W.3d 292, 299 (Ky. 2014) (school principal’s general
supervision of employees is discretionary function). In
addition, both state and federal courts that have consid-
ered the issue in a different municipal or governmental
setting also have concluded that general employee
supervision is a discretionary function. See Coley v.
Hartford, supra, 312 Conn. 164 (‘‘[police chief] may not
be deprived of his power to exercise his own discretion
and judgment as to the number, qualifications and iden-
tity of officers needed for particular situations at any
given time’’ [internal quotation marks omitted]); see
also Doe v. Holy See, 557 F.3d 1066, 1084 (9th Cir.
2009) (hiring, supervision and training of employees are
discretionary acts), cert. denied, U.S. , 130 S. Ct.
3497, 177 L. Ed. 2d 1089 (2010); Burkhart v. Washington
Metropolitan Area Transit Authority, 112 F.3d 1207,
1217 (D.C. Cir. 1997) (decisions concerning hiring, train-
ing and supervision of employees are discretionary in
nature and, therefore, ‘‘immune from judicial review’’);
Tonelli v. United States, 60 F.3d 492, 496 (8th Cir. 1995)
(‘‘[i]ssues of employee supervision and retention gener-
ally involve the permissible exercise of policy judgment
and fall within the discretionary function exception’’);
Attallah v. United States, 955 F.2d 776, 784 (1st Cir.
1992) (‘‘how, and to what extent the [United States]
Customs Service supervises its employees certainly
involves a degree of discretion’’); West Virginia
Regional Jail & Correctional Facility Authority v.
A.B., 234 W. Va. 492, 514 and n.27, 766 S.E.2d 751 (2014)
(citing state and federal cases holding that supervision
of employees is discretionary function). We agree with
the rationale expressed in the foregoing cases. Further-
more, it is axiomatic that public school administrators
perform ‘‘a difficult . . . and . . . vitally important’’
job in our society. Morse v. Frederick, 551 U.S. 393,
409, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007). After all,
they are in charge of a system that ‘‘enables our nation’s
youth to become responsible participants in a self-gov-
erning society.’’ Thomas v. Board of Education, 607
F.2d 1043, 1044 (2d Cir. 1979), cert. denied sub nom.
Granville Central School District v. Thomas, 444 U.S.
1081, 100 S. Ct. 1034, 62 L. Ed. 2d 765 (1980). Because
of the vital importance of their function to society,
school administrators undoubtedly ‘‘must be accorded
substantial discretion to oversee properly their myriad
responsibilities.’’ Id. Accordingly, we conclude that
Mathieu’s, McCubrey’s and Sward’s duty to ensure that
school staff members adequately discharged their
assignments was discretionary because it was encom-
passed within their general responsibility to manage
and supervise school employees.
The plaintiff next argues that the trial court incor-
rectly concluded that Mathieu, McCubrey and Sward
had fulfilled their ministerial duty of assigning school
staff members to bus duty by actually preparing the
bus duty roster. In particular, the plaintiff contends
that the issue of whether a duty properly had been
discharged is a question of fact that must be decided
by a jury. The plaintiff further contends that there
remains a genuine issue of material fact as to whether
the bus duty roster was in fact created and distributed
to the staff. We reject the plaintiff’s arguments with
respect to Mathieu, but we agree that the trial court
improperly granted summary judgment with respect to
McCubrey and Sward because there remains a genuine
issue of material fact as to whether the bus duty roster
had been created and distributed to school staff
members.
The following additional legal principles inform our
analysis of this claim. ‘‘Summary judgment procedure
is especially ill-adapted to negligence cases . . .
[when] . . . the ultimate issue in contention involves
a mixed question of fact and law, and requires the trier
of fact to determine whether the standard of care was
met in a specific situation.’’ (Internal quotation marks
omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362
A.2d 857 (1975). We have also stated, however, that
‘‘[t]he application of the standard of care to the particu-
lar facts becomes a question of law . . . when the mind
of a fair and reasonable person could reach but one
conclusion . . . .’’ Smith v. Leuthner, 156 Conn. 422,
424–25, 242 A.2d 728 (1968).
We first address the issue of whether Mathieu’s dis-
charge of his ministerial duty can be decided as a matter
of law. There can be no dispute that Mathieu had two
distinct ways of discharging his ministerial duty to
assign school staff members to different posts through-
out the school, including the bus port; Loiselle unambig-
uously testified that Mathieu could either personally
assume the responsibility for assigning staff membrers,
or he could delegate that duty to one of the assistant
principals.22 It is also not disputed that Mathieu had, in
fact, delegated that duty to McCubrey, and that McCu-
brey accepted the delegation and was aware of her
responsibilities with respect to that duty. On the basis
of this uncontroverted evidence, a fair and reasonable
person could reach but one conclusion on the issue of
Mathieu’s duty, namely, that Mathieu, having arranged
for school staff members to be assigned to their respec-
tive posts, including the bus port, discharged his minis-
terial duty. Accordingly, we conclude that the trial court
properly determined that Mathieu had fulfilled his min-
isterial duty as a matter of law.
We reach a different conclusion with respect to
McCubrey and Sward. Our examination of the record
reveals that there is an inconsistency between McCu-
brey’s deposition testimony and her interrogatory
responses. In the latter, McCubrey stated that she had
created the bus duty roster during the preceding sum-
mer, assigning approximately two weeks of bus duty
to each staff member. At her deposition, however,
McCubrey testified that she had prepared only outlines
of the roster and not the final version of the document.
Furthermore, she did not testify that she had personally
distributed the bus duty roster to staff members but,
rather, that she merely forwarded these outlines to
Sward’s office for possible tweaking. Significantly,
McCubrey was unable to identify who, if anyone, had
received the outlines, or what happened to them follow-
ing their submission. The trial court dismissed ‘‘any
expressed uncertainty’’ in McCubrey’s testimony and
relied instead on her responses to the plaintiff’s inter-
rogatories. Unlike the trial court, however, we are not
prepared to disregard McCubrey’s deposition testimony
as immaterial. On the contrary, because she conceded
that she had created a version of the bus duty roster
that might not have been final, and because she could
not say what happened to it following its submission
to Sward’s office, her deposition testimony materially
undermines the apparent clarity of her interrogatory
responses.23
Equally important, both Mathieu and McCubrey
attested that the bus duty roster could not be located
because ‘‘[g]enerally . . . such duty rosters are not
retained after the completion of the calendar school
year.’’ The record reveals, however, that, during the
school year in question, on March 19, 2008, the plaintiff
filed his notice of intention to bring a civil action pursu-
ant to § 7-465. In that notice, the plaintiff alleged, among
other things, that the defendants were negligent by
‘‘[f]ailing to take precautions to ensure that students
. . . did not leave the school grounds during school
hours after arriving at school . . . .’’ This allegation
provided more than sufficient notice to school adminis-
trators that they needed to preserve the potentially rele-
vant documents, including the bus duty roster, or
otherwise to identify the persons on duty on the day
of the accident.
Finally, the plaintiff testified that he smoked ciga-
rettes across from the school ‘‘[a]lmost every day’’ over
the two weeks immediately preceding the accident, and,
in his affidavit, he attested to the fact that he did not
see any staff members on duty at the bus port during
that time frame. In addition, Lily testified at his deposi-
tion that, on the morning of the accident, both he and
the plaintiff exited the school bus, had a brief conversa-
tion at the bus port and proceeded in the direction of
the crosswalk without encountering any staff member
as they did so. There was no evidence submitted to the
contrary that would allow an inference that the staff
members were present but simply not seen by the two
students. It is difficult to see how no fewer than four
different staff members—two per week—all could have
failed to report for bus duty for a two week period if
they had been properly notified by McCubrey or Sward.
Therefore, we disagree with the trial court’s determina-
tion that McCubrey’s responses ‘‘leave no real doubt
that bus duty was actually assigned.’’ Accordingly, with
respect to McCubrey and Sward, we conclude that there
remains a genuine issue of material fact as to whether
the bus duty roster had been created and whether it
was timely distributed to staff members. Thus, the trial
court improperly granted the motion for summary judg-
ment as to McCubrey and Sward, and the case must
be remanded for further proceedings with respect to
this issue.
II
We next address the plaintiff’s claim that the trial
court incorrectly determined that, as a matter of law,
the identifiable person-imminent harm exception to
governmental immunity is inapplicable to the present
case. In particular, the plaintiff contends that the trial
court incorrectly concluded that he forfeited his status
as a member of the identifiable class of foreseeable
victims when he voluntarily left school property and
was injured on a public road. The plaintiff further con-
tends that our decision in Haynes v. Middletown, supra,
314 Conn. 303, which was issued after the trial court’s
decision in the present case, is at odds with the trial
court’s conclusion that the harm at issue was not immi-
nent. We address each of the plaintiff’s contentions
in turn.
The following additional legal principles concerning
the doctrine of governmental immunity guide our analy-
sis. ‘‘The imminent harm exception to discretionary act
immunity [for municipalities and their employees]
applies 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 . . . . By its own terms, this test requires 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. . . . We have stated previously that this excep-
tion to the general rule of governmental immunity for
employees engaged in discretionary activities has
received very limited recognition in this state. . . . If
the plaintiffs fail to establish any one of the three
prongs, this failure will be fatal to their claim that they
come within the imminent harm exception.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Violano v. Fernandez, supra, 280 Conn. 329.
‘‘[T]he ultimate determination of whether [governmen-
tal] immunity applies is ordinarily a question of law for
the court . . . [unless] there are unresolved factual
issues material to the applicability of the defense . . .
[in which case] resolution of those factual issues is
properly left to the jury.’’ (Internal quotation marks
omitted.) Haynes v. Middletown, supra, 314 Conn. 313.
We note, at the outset, that the plaintiff does not
challenge the trial court’s determination that the board
members and Loiselle were engaged in discretionary
conduct. Furthermore, as we previously concluded,
Mathieu, McCubrey and Sward also were engaged in
discretionary conduct with the exception of their minis-
terial duty to assign school staff members to bus duty
under the student supervision program. Therefore, the
plaintiff can prevail against the defendants on his out-
standing claims of negligent supervision only if he falls
within the identifiable person-imminent harm excep-
tion.
A
The plaintiff first contends that the trial court incor-
rectly concluded that the defendants did not owe him
a duty of care because he relinquished his status as a
member of the identifiable class of foreseeable victims
when he voluntarily left school property. According to
the plaintiff, his conduct should not have affected his
class status because that status attaches when school
officials take custody of a student at the beginning of
the school day, at which time they have a duty to protect
the student from imminent harm for the remainder of
the school day.24 The plaintiff also argues that the defen-
dants owed him a duty of supervision both on and off
school grounds, namely, at the bus port and at the
crosswalk where he was injured.
We conclude that, in light of the two theories of
negligent supervision that the plaintiff alleges, this issue
calls for a more nuanced resolution than that provided
by the blanket approaches advocated by the plaintiff
and the defendants. Specifically, we conclude that
school officials may be held liable for injuries occurring
off school property if the allegedly negligent act that
proximately caused the injury occurred on school
grounds when the student was under the school’s super-
vision and control. We further conclude, however, that
school officials cannot be held liable for failing to super-
vise a student crossing the street to leave school
grounds after arriving at school in violation of a known
school policy.
We have stated that ‘‘the question of whether a partic-
ular plaintiff comes within a cognizable class of foresee-
able victims for purposes of this exception to qualified
immunity is ultimately a question of policy for the
courts, in that it is in effect a question of duty. . . .
This involves a mixture of policy considerations and
evolving expectations of a maturing society . . . .’’
(Citation omitted; internal quotation marks omitted.)
Prescott v. Meriden, 273 Conn. 759, 763–64, 873 A.2d
175 (2005). We have also stated that ‘‘this exception
applies not only to identifiable individuals but also to
narrowly defined identified classes of foreseeable vic-
tims.’’ (Internal quotation marks omitted.) Grady v.
Somers, 294 Conn. 324, 350–51, 984 A.2d 684 (2009).
Our decisions underscore, however, that ‘‘whether the
plaintiff was compelled to be at the location where the
injury occurred remains a paramount consideration in
determining whether the plaintiff was an identifiable
person or member of a foreseeable class of victims.’’25
Id., 355; see also id., 356 (‘‘we have interpreted the
identifiable person element narrowly as it pertains to
an injured party’s compulsion to be in the place at
issue’’). In fact, ‘‘[t]he only identifiable class of foresee-
able victims that we have recognized . . . is that of
schoolchildren attending public schools during school
hours because: they were intended to be the beneficiar-
ies of particular duties of care imposed by law on school
officials; they [are] legally required to attend school
rather than being there voluntarily; their parents [are]
thus statutorily required to relinquish their custody to
those officials during those hours; and, as a matter of
policy, they traditionally require special consideration
in the face of dangerous conditions.’’ (Internal quotation
marks omitted.) Id., 352.
In light of the aforementioned principles, it is inargu-
able that the plaintiff became a member of the identifi-
able class of foreseeable victims when he arrived at
school on the school bus: he was a fourteen year old
child enrolled in a public school, his attendance was
legally required, and his parents were statutorily man-
dated to relinquish their protective custody to school
officials. Accordingly, we agree with the plaintiff and
the trial court that the school officials’ duty to protect
the plaintiff from imminent harm attached once he
arrived at school on the day of the accident.
The trial court concluded, however, that the plaintiff
relinquished his class status by voluntarily leaving
school property, explaining that a school’s liability is
strictly limited to injuries that occur on school property.
In so concluding, the trial court observed that the pres-
ent case ‘‘is analogous to the line of cases that have
declined to consider students attending after-school
programs or activities to be within a class of identifiable
victims . . . .’’26 Strycharz v. Cady, Superior Court,
judicial district of New London, Docket No. KNL-CV-
09-5013484-S (November 7, 2013); see, e.g., Coe v. Board
of Education, 301 Conn. 112, 119, 19 A.3d 640 (2011)
(upholding trial court’s conclusion that student injured
at middle school graduation dance held at off-school
site was not member of identifiable class of foreseeable
victims because, inter alia, she was not required to be
at dance); Durrant v. Board of Education, 284 Conn.
91, 96, 104, 931 A.2d 859 (2007) (holding that mother,
whose six year old child was attending optional after-
school day care program conducted in conjunction with
public school, was not member of identifiable class of
foreseeable victims when she slipped and fell because
of puddle of water on school property while picking
up her daughter); Prescott v. Meriden, supra, 273 Conn.
763–65 (concluding that parent injured while watching
son playing in high school football game was not
required to be at game and thus not class member); see
also DeConti v. McGlone, 88 Conn. App. 270, 274, 869
A.2d 271 (‘‘Connecticut courts have consistently denied
relief absent a requirement that the plaintiff be present
at the location where the injury occurred’’), cert. denied,
273 Conn. 940, 875 A.2d 42 (2005). Although we agree
with the trial court that, generally speaking, our courts
have denied identifiable victim status unless the plain-
tiff was required to be at the location where the injury
occurred, the cited cases are distinguishable because
they dealt with the question of whether the plaintiffs
even belonged in the class of foreseeable victims as it
is defined by our case law. In the present case, however,
we must determine whether, and if so, under what cir-
cumstances, the status of a plaintiff who is a member of
that class may be altered by the plaintiff’s own conduct.
Under the facts of this case, we must also decide
whether class membership—and consequently a
school’s liability—can extend beyond the limits of
school property. For the reasons set forth hereinafter,
we disagree with the trial court and conclude that
school officials may be held liable for injuries occurring
off school grounds if the officials’ negligence on school
property was the proximate cause of the injuries.
Under our case law, the main purpose of charging
school officials with a duty of care is to ensure that
schoolchildren in their custody are protected from
imminent harm. See, e.g., Haynes v. Middletown, supra,
314 Conn. 315 n.6 (schools have duty to protect students
from imminent harm); Burns v. Board of Education,
supra, 228 Conn. 649 (‘‘[a]t least during school hours
on school days, when parents are statutorily compelled
to relinquish protective custody of their children to a
school board and its employees, the superintendent has
the duty to protect the [students] in the board’s custody
from [imminent harm]’’). The imposition of that duty
is predicated, in part, on our settled understanding of
the need ‘‘to safeguard children of tender years from
their propensity to disregard dangerous conditions.’’
(Internal quotation marks omitted.) Ruiz v. Victory
Properties, LLC, 315 Conn. 320, 333, 107 A.3d 381
(2015); see also Hoyem v. Manhattan Beach City School
District, 22 Cal. 3d 508, 520, 585 P.2d 851, 150 Cal.
Rptr. 1 (1978) (‘‘the duty to supervise school children
is imposed in large part in recognition of the fact that,
without such supervision, students will not always con-
duct themselves in accordance with school rules or as
safely as they ought to’’). Accordingly, we have recog-
nized that, when an imminent harm exists on school
grounds, the school has a duty to protect children
attending school from that harm. We have not yet had
occasion to consider the school’s duty when an immi-
nent harm exists off school property.
We first observe that a per se rule barring liability
would relieve school officials of liability even under
circumstances in which school activities take place off
school grounds. Thus, even if the school was exercising
custody and control over schoolchildren during school
hours on an educational field trip, a per se rule would
preclude liability if a child was injured by an apparent
and imminently harmful condition at the offsite loca-
tion. Such a result is not compelled by the plain terms of
the identifiable class—schoolchildren attending school
during school hours—which makes no mention of
school property. Such a result also would be incompati-
ble with the rationale that led this court to designate
this group as an identifiable class. Parents who have
relinquished control and custody of their children to
the school rightly expect that the school will exercise
reasonable care, as long as their children remain under
the school’s custody and control.
The same logic compels the conclusion that the
school is required to exercise reasonable care to pre-
vent schoolchildren attending school during school
hours from leaving school grounds when doing so
would expose them to an imminent harm. For example,
if the school in the present case were an elementary
school, it would seem manifestly unreasonable to fore-
close recovery as a matter of law if an unsupervised
six year old student was allowed to wander into the
intersection at issue and was struck by a car. One may
conceive of similarly compelling scenarios involving
older students. For example, if a high school had been
informed that an active shooter situation was in prog-
ress one block away from school, it would be irrational
to conclude that school officials would incur no liability
if they were to release children from their custody,
knowing that students would be walking directly
toward the area of the shooting. Such examples,
although quite different from the present case, illustrate
the infirmity of a rule that automatically absolves
schools of any liability merely because an accident
occurs off school property. Simply put, when a jury
reasonably could conclude that the potential for serious
harm to a student is both apparent and great, and that
danger, which lurks in close proximity to school prop-
erty, results in an off-site injury, we see no reason why
the doctrine of discretionary act immunity—the pur-
pose of which is to shield municipal officers from liabil-
ity in their exercise of truly discretionary judgment—
would extend to such a situation. Accordingly, we con-
clude that school officials may be liable for injuries that
occur off school property if their negligence on school
grounds during school hours was the proximate cause
of the injury and the risk of harm was imminent within
the meaning of Haynes.27 Notably, sister state courts
that have considered the issue have reached a similar
conclusion. See, e.g., Hoyem v. Manhattan Beach City
School District, supra, 22 Cal. 3d 515 (‘‘when a school
district fails to properly supervise a student on school
premises, the district [cannot] automatically escape lia-
bility simply because the student’s ultimate injury
occurs off school property’’); Doe v. Escambia County
School Board, 599 So. 2d 226, 228 (Fla. App. 1992)
(reversing judgment for defendants when questions of
fact remained with regard to whether failure to super-
vise plaintiff on school property resulted in sexual
assault off school grounds); Brooks ex rel. Brooks v.
Logan, 127 Idaho 484, 489, 903 P.2d 73 (1995) (school
district may be responsible for negligence during school
hours that ultimately results in injury off school
grounds); Gary ex rel. Gary v. Meche, 626 So. 2d 901,
902, 905 (La. App. 1993) (school board was liable for off-
campus injury when school officials failed to prevent
six year old plaintiff from leaving school unattended);
Jerkins ex rel. Jerkins v. Anderson, 191 N.J. 285, 289–
90, 922 A.2d 1279 (2007) (school may be liable for post-
dismissal, off-campus injury when it failed to implement
reasonable dismissal supervision policy).28
We reach a different conclusion insofar as the plain-
tiff’s theory is negligent supervision at the crosswalk.
The plaintiff claims that the defendants were negligent
by failing to provide a crossing guard at the crosswalk
situated on a public road beyond school property. Inher-
ent in the plaintiff’s theory of liability are two separate
assumptions, namely, (1) that the defendants had a duty
to provide supervision off school property to students
en route to and from school, and (2) that this duty
would also extend to a student leaving school grounds
in violation of school policy.
We note that this court has had no occasion to con-
sider whether schools have a common-law duty to
ensure safe passage to and from school by providing a
crossing guard at dangerous intersections or otherwise
to supervise them en route.29 We need not decide that
issue in the present case, however, for several reasons.
First, even if we were to conclude that such a duty
exists, it is clear that the defendants in this case dis-
charged that duty with respect to the plaintiff when he
was safely delivered to school by a school bus. Second,
any duty to supervise pedestrian students at a crosswalk
for the purpose of ensuring safe passage to and from
school cannot be said to extend to a student leaving
school grounds in violation of school policy. The rea-
sonable expectation of parents placing their children
in the school’s custody is that the school will make
reasonable efforts to ensure that students remain under
its custody and control. Conversely, parents of high
school students reasonably cannot expect the school to
provide for their child’s departure from school grounds
during the school day and in violation of school policy.
It is not difficult to imagine that escorting a student off
school grounds could expose the child to dangers that
equal or exceed those posed by a busy street crossing.30
Accordingly, the plaintiff can prevail on his claim of
negligent supervision only if he is able to prove that the
defendants’ supervision of students on school grounds
was deficient and that it was a proximate cause of
his injuries.
B
The plaintiff next contends that our decision in
Haynes cannot be squared with the trial court’s conclu-
sion that the harm at issue in the present case was not
imminent. Under Haynes, the plaintiff argues, the harm
was imminent, and the school was clearly negligent.
Specifically, the plaintiff argues that he adduced evi-
dence demonstrating that (1) the intersection in ques-
tion subjected students to the risk of being hit by a
vehicle, (2) the defendants knew about that risk, and
(3) despite their knowledge, the defendants failed to
provide adequate supervision of the students at the bus
port. The plaintiff further argues that, as in Haynes,
this evidence is sufficient to permit a finding that the
dangerous intersection, coupled with the defendants’
failure to adequately supervise the students at the bus
port, subjected him to imminent harm. The defendants
counter that Haynes is distinguishable from the present
case because, in contrast to the plaintiff in Haynes, the
plaintiff in the present case failed to establish that any
allegedly imminent harm was apparent to the defen-
dants. Specifically, the defendants argue that the plain-
tiff presented no evidence that the defendants were
aware that students arriving by bus were leaving school
grounds before the start of school.
As we previously noted, one of the reasons for the
trial court’s conclusion that the identifiable person-
imminent harm exception did not apply to the present
case was its determination that the risk of harm was
not imminent. In evaluating the risk of harm, the trial
court relied on the principles that governed the doctrine
of imminent harm at that time. See, e.g., Purzycki v.
Fairfield, 244 Conn. 101, 110, 708 A.2d 937 (1998) (con-
cluding that second grade student’s unsupervised use
of school hallway during recess constituted imminent
harm because it was limited to specific time period and
geographical area, namely, ‘‘the one-half hour interval
when . . . students were dismissed from the lunch-
room to traverse [unsupervised school hallways]’’),
overruled in part by Haynes v. Middletown, 314 Conn.
303, 101 A.3d 249 (2014). Following the trial court’s
decision and during the pendency of the present appeal,
however, we reexamined the imminent harm doctrine
in Haynes. For that reason, a closer review of that case
is necessary.
In Haynes, the plaintiff Jasmon Vereen, a high school
student, was injured while changing in the locker room
following his physical education class. Haynes v. Mid-
dletown, supra, 314 Conn. 308. Although the students
had been informed by the school that horseplay in the
locker room was not permitted, Vereen and other stu-
dents were engaged in such horseplay at the time. Id.
One of the students pushed Vereen into a locker that
had an exposed jagged and rusted edge, and Vereen
suffered a cut that left a scar. Id. The evidence estab-
lished that the locker had been in a state of disrepair for
approximately seven months. Id., 308, 325. The evidence
also demonstrated that school officials knew that the
locker was in a state of disrepair and that horseplay in
the locker rooms was an ongoing problem. Id., 325. In
the ensuing action, Vereen alleged that the defendant,
the city of Middletown (city), and its agents or employ-
ees were negligent. Id., 308. The city contended that
maintenance of the locker was a discretionary duty not
governed by any municipal policy or procedure, thereby
shielding it from liability. See id., 308–309. At trial, Ver-
een conceded that the city’s acts were discretionary
but argued that the identifiable person-imminent harm
exception applied ‘‘because the condition of the locker
presented an imminent harm’’ to students in the locker
room. Id., 309. The trial court concluded that the defec-
tive locker did not pose a risk of imminent harm and
rendered judgment in favor of the city.31 The Appellate
Court subsequently affirmed the trial court’s judgment.
Haynes v. Middletown, 142 Conn. App. 720, 737, 66
A.3d 899 (2013).
On appeal to this court, we revisited and clarified
the then existing principle of imminent harm. In particu-
lar, we examined our decision in Evon v. Andrews,
supra, 211 Conn. 501, in which we explained that a
harm is not imminent if it ‘‘could have occurred at any
future time or not at all.’’32 Id., 508. In light of Evon, we
concluded that a harm is not imminent unless it is ‘‘so
likely to happen that it gives rise to a clear duty to
correct the dangerous condition creating the risk of
harm immediately upon discovering it . . . .’’ Haynes
v. Middletown, supra, 314 Conn. 317. We emphasized
that this interpretation of Evon is consistent both with
the meaning of the word imminent, that is, ‘‘ready to
take place’’;33 (internal quotation marks omitted) id.,
318; and ‘‘with our case law holding that the imminent
harm to identifiable persons exception represents a
situation in which the public official’s duty to act is
[so] clear and unequivocal that the policy rationale
underlying discretionary act immunity—to encourage
municipal officers to exercise judgment—has no force.’’
(Internal quotation marks omitted.) Id.
Although this court appeared to narrow the definition
of imminent harm in Burns v. Board of Education,
supra, 228 Conn. 650, which applied ‘‘to harms arising
from dangerous conditions that are temporary, if the
risk of harm is significant and foreseeable’’; (emphasis
omitted) Haynes v. Middletown, supra, 314 Conn. 319;
we rejected the temporariness requirement in Haynes,
overruling Burns in part and noting that Evon did not
stand for the proposition that ‘‘imminent harms are
harms that can . . . happen [only] in the immediate
future because they arise from temporary conditions.’’34
Id., 320. In doing so, we expressly observed that our
statement in Evon ‘‘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 original; internal
quotation marks omitted.) Id., 322. Thus, in accordance
with the implicit rationale of Evon, we concluded that
‘‘the proper standard for determining whether a harm
was imminent is whether it was apparent to the munici-
pal 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.’’35 Id., 322–23.
Applying that clarified standard to the facts in
Haynes, we first held that, because the jury reasonably
could infer that school officials knew that the locker
had been broken for seven months, and because school
officials also knew that, despite the written warning
provided to students at the beginning of the school year,
horseplay was an ongoing problem in the locker room, a
jury reasonably could have inferred ‘‘that the dangerous
condition was apparent to school officials.’’ Id., 325.
We further held that, although the evidence in that case
was ‘‘far from compelling, we [nevertheless were]
unable to conclude that no reasonable juror could find
that it was apparent to school officials that, in combina-
tion, 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 immediately 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. Accordingly, we
reversed the judgment of the Appellate Court and
remanded the case to that court with direction to
remand the case to the trial court for a new trial. Id., 331.
In the present case, there is abundant evidence that
the defendants were concerned about the safety of stu-
dents using the crosswalk to walk to and from school.
But the safety of the students crossing before and after
school, in accordance with school policy, is not at issue
in this case. The 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. There is no such evidence.
Indeed, all of the defendants who were deposed testi-
fied that they had no such knowledge. For example,
Mathieu, the principal, testified that, prior to the plain-
tiff’s accident, Mathieu had no knowledge from ‘‘any
source whatsoever’’ that students were leaving school
grounds before the start of school. Indeed, Mathieu
stated that he never even considered the possibility of
this occurring because, if a student were caught, it
would result in his or her suspension from school.
Of course, the plaintiff was not required to prove
actual knowledge on the part of the defendants. As
we have stated previously, the applicable test for the
apparentness prong of the identifiable person-imminent
harm exception is an objective one, ‘‘pursuant to which
we consider the information available to the [school
official] at the time of [his or] her discretionary act or
omission.’’ Edgerton v. Clinton, 311 Conn. 217, 231, 86
A.3d 437 (2014). Under that standard, ‘‘[w]e do not ask
whether the [school official] actually knew that harm
was imminent but, rather, whether the circumstances
would have made it apparent to a reasonable [school
official] that harm was imminent.’’ Id., 231 n.14. None-
theless, the plaintiff does not identify any facts in the
record that would have made it apparent to the defen-
dants that students arriving by bus were crossing Nor-
wich Avenue before the start of school. Admittedly, the
plaintiff claims that he himself did so ‘‘almost every
day’’ during the first two weeks of school, and that he
observed ‘‘many’’ students doing the same. The plain-
tiff’s testimony, however, is insufficient to create a gen-
uine issue of material fact with respect to this issue.
As a practical matter, ‘‘many’’ could be five or it could
be twenty-five; we simply have no way of knowing and,
therefore, no way of knowing whether, on the basis of
the sheer magnitude of the problem, it is reasonable to
impute knowledge of it to the defendants. The same
logic holds for the plaintiff’s assertion that the other
side of Norwich Avenue was ‘‘a common area for stu-
dent[s] to smoke’’ or Lily’s deposition testimony that
crossing the street to smoke before school ‘‘was just a
normal thing [to do] . . . .’’ Furthermore, even if we
knew the exact number of students who were arriving
by bus and then walking across the street, there is
nothing in the record to indicate that the defendants
would have seen them doing it. To the contrary, the
evidence in the record indicates that school personnel
were contractually required to be at work by 7:15 a.m.,
prior to the arrival of the first school bus. We cannot
assume, therefore, that staff members would have
driven by these students on their way to work. Nor is
there any evidence in the record that they would have
seen them from their offices or classrooms if they hap-
pened to look out the window at an opportune moment.
Even if, as Mathieu claims, there were faculty members
assigned to the bus port every morning, it is unclear
from the record that those faculty members would have
seen a small number of students, amidst the approxi-
mately 1000 students arriving in a fifteen minute time
frame, slipping into the parking lot and across Norwich
Avenue. The plaintiff, for his part, denies that faculty
members who might have seen him were even present
at the bus port during the period in question.
The plaintiff argues that ‘‘[t]he thrust of [his claim]
is that if school personnel had performed their duties,
upon his arrival at school, [he] would have been safely
inside the school building each morning. Instead, he
crossed Norwich Avenue each morning to smoke
. . . .’’ Whether school personnel could have prevented
the plaintiff from leaving school property, however,
although certainly relevant to the plaintiff’s breach of
a ministerial duty claim, is simply irrelevant to the issue
of whether it was apparent to them that students were,
in fact, leaving school property, which is what the plain-
tiff must demonstrate to establish the applicability of
the identifiable person-imminent harm exception to
governmental immunity. Because we are unable to con-
clude, on the basis of the record before us, that a reason-
able juror could find that the circumstances were such
that the defendants would have been aware of this
problem, the defendants are entitled to judgment as a
matter of law on this claim.36
The judgment is reversed with respect to the granting
of the motion for summary judgment in favor of McCu-
brey and Sward and the case is remanded for further
proceedings according to law; the judgment is affirmed
in all other respects.
In this opinion ROGERS, C. J., and ZARELLA,
McDONALD, ESPINOSA and ROBINSON, Js., con-
curred.
1
The plaintiff Kiersten Strycharz commenced this action as next friend
and parent of her then minor son, the named plaintiff, Joseph Strycharz.
She did not raise any claims in her individual capacity. For ease of reference,
we hereinafter refer to Joseph Strycharz as the plaintiff throughout this
opinion.
2
The plaintiff also asserted claims against Richard D. Cady, the driver of
the vehicle that struck him, Gregory Plunkett, the town’s director of facilities
and operations, and the town for Plunkett’s alleged negligence and the
alleged negligence of certain unnamed personnel assigned to bus duty at
the school on the morning of the accident. The latter three claims were
added by way of an amended complaint that was filed after the defendants
filed their motion for summary judgment. With respect to Cady, the trial
court granted the plaintiff’s motion for a judgment of default and rendered
judgment thereon. The claims against Plunkett and the town for the alleged
negligence of Plunkett and other unnamed individuals remain pending in
the trial court and are not at issue in the present appeal. We note that,
despite the fact that certain claims remain pending against the town, we
treat this appeal as to the counts against the town as one from a final
judgment because those claims are derivative of claims against individuals
for whom there are no pending claims.
3
General Statutes (Rev. to 2007) § 7-465 provides in relevant part: ‘‘(a)
Any town, city or borough, notwithstanding any inconsistent provision of
law, general, special or local, shall pay on behalf of any employee of such
municipality . . . all sums which such employee becomes obligated to pay
by reason of the liability imposed upon such employee by law for damages
awarded . . . for physical damages to person or property . . . if the
employee, at the time of the occurrence, accident, physical injury or damages
complained of, was acting in the performance of his duties and within the
scope of his employment . . . .’’
Hereinafter, all references to § 7-465 are to the 2007 revision.
4
As we explain more fully hereinafter, governmental immunity protects
municipalities and their employees from liability for negligence when the
negligent acts are discretionary in nature. An exception to governmental
immunity for discretionary acts pertains to circumstances in which an identi-
fiable victim faces imminent harm if no action is taken. Governmental immu-
nity also does not shield municipalities and their employees from liability
if the negligent acts are ministerial in nature.
5
The plaintiff appealed to the Appellate Court from the judgment of the
trial court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
6
The area also had ‘‘[a]n existing ‘School Speed Limit 30 When Flashing’
zone,’’ with just two school zone signs governing a stretch of Norwich
Avenue that actually included two schools separated by one-half mile. The
town expressed concern about the situation because persons driving there,
having passed one of the schools, might well assume that the school zone
had ended and resume their higher speed.
7
The first school bus arrived at the school at 7:15 a.m., and school started
at 7:35 a.m.
8
Under the terms of their contract, the teachers were required to arrive
at school by 7:15 a.m.
9
At her deposition, Loiselle testified without contradiction that Mathieu
had the authority to delegate that duty to either McCubrey or Sward.
10
In addition to providing a physical copy of the roster to the staff at the
beginning of the school year, the administrators would also issue a reminder
at the beginning or the end of each week, informing the assigned staff
members about their upcoming duty schedule.
11
Although Sward was also deposed, the record does not contain his
testimony concerning this issue.
12
The following colloquy took place during McCubrey’s deposition:
‘‘[The Plaintiff’s Counsel]: Now, you had mentioned earlier that this roster,
because of your surgery, you had handed it off to someone, but you don’t
recall who it was?
‘‘[McCubrey]: Right.
‘‘[The Plaintiff’s Counsel]: Do you know if the roster was essentially
implemented after you gave this roster to this person?
‘‘[McCubrey]: Yes.
‘‘[The Plaintiff’s Counsel]: And how do you know that?
‘‘[McCubrey]: Because I would have made sure that everything was set
for the beginning of [the] school [year].’’
13
The plaintiff smoked on the other side of Norwich Avenue because
smoking on school property was a violation of school policy that could
result in suspension or expulsion.
14
General Statutes (Rev. to 2007) § 10-220 provides in relevant part: ‘‘(a)
Each local or regional board of education shall maintain good public elemen-
tary and secondary schools, implement the educational interests of the state
. . . and . . . shall provide an appropriate learning environment for its
students which includes . . . (4) a safe school setting . . . .’’
Hereinafter, all references to § 10-220 are to the 2007 revision.
15
We note that neither the plaintiff’s complaint nor any pleadings or
documents filed with the trial court provide the text of policy 5142 (a) of
the School Policies and Regulations. Pursuant to General Statutes § 52-163,
however, we take judicial notice of that regulation.
Policy 5142 (a) of the School Policies and Regulations provides in relevant
part: ‘‘The Superintendent of Schools shall implement rules and regulations
governing student safety. These rules and regulations shall include the fol-
lowing points:
‘‘1. Regular inspection of school grounds and buildings for safety hazards.
‘‘2. Establishment of safety rules and regulations.
‘‘3. Involvement of all students and school personnel accountable for
safety. . . .’’
16
The plaintiff also asserted corresponding direct liability claims against
the town pursuant to General Statutes § 52-557n (a) (1). These claims are
not at issue in this appeal, however, because the trial court did not rule on
all of the plaintiff’s direct liability claims against the town.
17
General Statutes § 52-557n provides in relevant part: ‘‘(a) (1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to persons or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . . .
(2) Except as otherwise provided by law, a political subdivision of the state
shall not be liable for damages to person or property caused by . . . (B)
negligent acts or omissions which require the exercise of judgment or discre-
tion as an official function of the authority expressly or impliedly granted
by law. . . .’’
18
The trial court also observed that, even if mere delegation of the duty
to McCubrey was not enough to satisfy Mathieu’s duty, there was ‘‘no genuine
issue of material fact as to whether the [bus] duty roster was actually
created, notwithstanding the disappearance of the roster itself.’’ The court
further reasoned that, once the bus duty roster had been completed, and
the staff members were assigned their duty periods, Mathieu had discharged
his responsibility. For the reasons set forth hereinafter, we do not agree
with this reasoning of the trial court. We do agree, however, that Mathieu
discharged his ministerial duty by delegating it to McCubrey.
19
The trial court further concluded that, because it had already determined
that the identifiable person-imminent harm exception did not apply in this
case, the plaintiff could not prevail on his claim that Mathieu, McCubrey
and Sward were negligent in their supervision of school staff members.
20
In Haynes, this court reexamined and modified the imminent harm
analysis. Specifically, we held 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.’’ Haynes v. Middletown, supra, 314 Conn. 322–23.
21
We note, preliminarily, that ‘‘[o]ur standard of review of a trial court’s
granting of summary judgment is well established. Pursuant to Practice
Book § 17-49, summary judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as
a matter of law. Such questions of law are subject to plenary appellate
review. . . . The test is whether a party would be entitled to a directed
verdict on the same facts.’’ (Citation omitted; internal quotation marks omit-
ted.) Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 188, 819 A.2d
765 (2003). Furthermore, ‘‘[t]he issue of governmental immunity is simply
a question of the existence of a duty of care, and this court has approved
the practice of deciding the issue of governmental immunity as a matter of
law.’’ (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607,
613, 903 A.2d 191 (2006). In addition, although this appeal concerns only
the plaintiff’s claims against the municipal employees under the common
law and against the town under § 7-465, not § 52-557n (a), ‘‘this court has
recognized that the common-law exceptions to liability for municipal
employees are codified under § 52-557n (a)’’ and that ‘‘the analysis is the
same.’’ Bonington v. Westport, 297 Conn. 297, 307 n.8, 999 A.2d 700 (2010).
22
Common sense dictates that, even in the absence of an explicit directive
or authorization by a superior, school principals must have the authority
to delegate some of their powers and responsibilities to subordinates. To
conclude otherwise would place an undue burden on the principal, one that
would make it impossible for him or her to do that job.
23
We further note that, in light of McCubrey’s testimony conceding her
lack of actual knowledge as to what happened to the outlines after she
forwarded them to Sward’s office, her assertion that the bus duty roster
had been distributed because she ‘‘would have made sure that everything
was set for the beginning of school’’ is not conclusive, particularly because
neither the roster nor the outline has ever been located, the plaintiff pre-
sented evidence indicating that there was no staff supervision at the bus
port for at least the first two weeks of school, and the persons purportedly
assigned to bus duty for that time period have not been identified.
24
The plaintiff also argues that there is no precedent in this state for
considering the plaintiff’s conduct in determining class status, and that his
conduct is more appropriately analyzed in the context of contributory neg-
ligence.
25
As we explain hereinafter, it is equally significant if the plaintiff is
compelled to be at the place where the breach of the duty of care occurred.
26
The trial court quoted Burns v. Board of Education, supra, 228 Conn.
650, for the proposition that one of the reasons for considering public school
students as an identifiable class of foreseeable victims is that they are
‘‘compelled by statute to be on . . . school grounds’’ where the injury
occurred. (Emphasis omitted.) Although we agree that the fact that the
injury in Burns occurred on school grounds was one of the factors relevant
to our determination that the plaintiff in that case was a member of the
class, we do not agree with the trial court’s conclusion that that fact was
a necessary prerequisite to the identifiable class determination in Burns
because the place of injury was not at issue in that case, and, consequently,
we were not required to decide whether an injury occurring off school
property would have made a difference.
27
We emphasize that our conclusion does not relieve a plaintiff of the
burden of proving that, immediately prior to the accident, he or she belonged
to the identifiable class of foreseeable victims and, therefore, was owed a
duty of care by the defendant. We further emphasize that the plaintiff’s
conduct in voluntarily leaving school property in direct violation of a known
school policy properly may be considered by the fact finder in assessing
the issue of comparative negligence.
28
We underscore, however, that courts, in considering whether the super-
vision was reasonable, have universally recognized that the degree and
nature of supervision is dependent on the age of the child and the nature
of the dangerous condition. See, e.g., Haynes v. Middletown, supra, 314
Conn. 315 n.7 (determination of whether harm is imminent should include
‘‘characteristics of the persons who are likely to be exposed to it’’); see also
Bryant v. United States, 565 F.2d 650, 653 (10th Cir. 1977) (‘‘[c]onduct that
might easily qualify as ordinary and prudent care to a child of one age, and
with capacity to understand and appreciate danger, might easily fall short
of such classification with reference to a child of more tender years and of
less understanding and appreciation of danger’’).
29
Our sister states that have considered the issue uniformly have declined
to impose such a duty, holding that schools are not responsible for the
supervision of students off school grounds—including pedestrian students
en route to and from school—in the absence of a statutory mandate or an
assumption of that responsibility on the part of the school. See, e.g., Monroe
v. Basis School, Inc., 234 Ariz. 155, 158, 318 P.3d 871 (App. 2014) (‘‘a school
has no affirmative, [common-law] duty to provide school crossing guards’’);
Gilbert v. Sacramento Unified School District, 258 Cal. App. 2d 505, 508,
65 Cal. Rptr. 913 (1968) (no duty to supervise students going to or from
school in absence of statutory mandate or assumption of duty); Kerwin v.
San Mateo, 176 Cal. App. 2d 304, 307, 1 Cal. Rptr. 437 (1959) (‘‘[a] school
district is under no duty to supervise, or provide for the protection of its
[students], on their way home’’); Rife v. Long, 127 Idaho 841, 847, 908 P.2d
143 (1995) (no common-law duty of care when students have been released
and parents are free to resume control over their children); Honeycutt ex
rel. Phillips v. Wichita, 251 Kan. 451, 469–70, 836 P.2d 1128 (1992) (school
district has no duty to supervise students who are off school grounds and
on their way home unless it has undertaken that duty); Davis v. Lutheran
South High School Assn., 200 S.W.3d 163, 168–69 (Mo. App. 2006) (no duty
of care when school has no physical custody of students); Young ex rel.
Young v. Salt Lake City School District, 52 P.3d 1230, 1233–34 (Utah 2002)
(no affirmative common-law duty to provide crossing guard). We also note
that our sister jurisdictions, in declining to impose the duty, reason that,
because the school’s duty is ‘‘coextensive with and concomitant to its physi-
cal custody of and control over the child, [that duty must cease when] the
child has passed out of the orbit of [the school’s] authority in such a way
that the parent is perfectly free to reassume control over the child’s protec-
tion . . . .’’ Pratt ex rel. Pratt v. Robinson, 39 N.Y.2d 554, 560, 349 N.E.2d
849, 384 N.Y.S.2d 749 (1976); see also Rife v. Long, supra, 847 (‘‘[T]he
[common-law] duty [arises] because the parents are not in a position to
protect their children while [the children] are attending school. . . . How-
ever, after school has adjourned for the day, and the students have been
released, the parents are free to resume control over the child’s well-being.’’).
30
We also note that it is far from obvious that a crossing guard at the
intersection would have been able to prevent the accident in this case. As
an employee of the school, a crossing guard could be required to inquire
whether students who are attempting to leave school premises have permis-
sion to do so. As a result, students without permission would likely find
another place to cross the street where their infraction would not be detected
and potentially reported. See, e.g., Dalton v. Memminger, 67 A.D. 3d
1350, 1350, 889 N.Y.S.2d 785 (2009) (despite existence of crossing guard at
intersection, student was struck by car after leaving school grounds to
smoke cigarette when she crossed highway short distance from intersection
where crossing guard was posted).
31
Although the jury in Haynes returned a verdict in favor of Vereen, the
trial court granted the city’s motion to set aside that verdict and rendered
judgment for the city. Haynes v. Middletown, supra, 314 Conn. 310.
32
In Evon, ‘‘the plaintiffs alleged that their decedents had been killed when
a fire destroyed their residence. They claimed that the city of Waterbury and
its officers had been negligent in failing properly to enforce various statutes,
regulations and codes concerning the maintenance of rental dwellings . . .
and that this negligence had subjected readily identifiable persons—the
decedents—to imminent harm. . . . This court concluded that [t]he risk of
fire implicates a wide range of factors that can occur, if at all, at some
unspecified time in the future.’’ (Citations omitted; internal quotation marks
omitted.) Haynes v. Middletown, supra, 314 Conn. 317.
33
See, e.g., Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003) p. 621
(defining ‘‘imminent’’ as, inter alia, ‘‘hanging threateningly over one’s head’’).
34
We also rejected the foreseeability standard articulated in Burns
because it did not rise to the level of ‘‘the demanding imminent harm standard
. . . .’’ Haynes v. Middletown, supra, 314 Conn. 321.
35
We further emphasized that, because ‘‘[a] condition that is not an immi-
nent harm in one context may be an imminent harm in another context,’’
the determination of whether a harm is imminent should include an examina-
tion of all facts and circumstances surrounding the dangerous condition,
‘‘including the characteristics of the persons who are likely to be exposed
to it.’’ Haynes v. Middletown, supra, 314 Conn. 315 n.7; see also Bryant v.
United States, 565 F.2d 650, 653 (10th Cir. 1977) (‘‘[c]onduct that might
easily qualify as ordinary and prudent care to a child of one age, and with
capacity to understand and appreciate danger, might easily fall short of
such classification with reference to a child of more tender years and of
less understanding and appreciation of danger’’).
36
In his concurring and dissenting opinion, Justice Eveleigh maintains
that, to satisfy the apparentness prong of the identifiable person-imminent
harm exception to governmental immunity, the plaintiff need only demon-
strate that the defendants were aware that ‘‘students arriving by bus would
be in danger if not properly supervised after arriving at school.’’ Our case
law makes clear, however, that a plaintiff seeking to invoke that exception
must demonstrate that the defendants were aware of the specific danger
alleged to have caused the plaintiff’s injuries. That danger in the present
case, as alleged throughout the plaintiff’s complaint, was ‘‘that . . . students
regularly left school grounds and crossed Norwich Avenue . . . rather than
entering the school building immediately upon arrival [at] school.’’ For the
reasons previously set forth, we conclude that the plaintiff has failed to
demonstrate that a jury reasonably could infer that it was apparent to the
defendants that students were engaged in this type of behavior prior to the
start of school.
Justice Eveleigh also asserts that, because, during the pendency of this
appeal, this court modified the legal standard for determining whether a
particular harm was imminent; see Haynes v. Middletown, supra, 314 Conn.
322–23; we should remand the case to the trial court for application of the
correct legal standard. Specifically, Justice Eveleigh maintains that ‘‘any
insufficiency in proof by the plaintiff [may have been] caused by the subse-
quent change in the law,’’ and ‘‘he should be given [a] chance to [present]
evidence in light of the new legal standard.’’ Our decision, however, does
not rest on the plaintiff’s failure to satisfy the imminency prong of the
identifiable person-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.