McCarroll v. Town of E. Haven ( 2018 )


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    MASON MCCARROLL ET AL. v. TOWN OF EAST
    HAVEN
    (AC 39260)
    Lavine, Keller and Pellegrino, Js.
    Syllabus
    The plaintiff parents, individually and on behalf of their minor son, who
    had sustained injuries to his left arm when he fell from the ladder of a
    wooden playscape he was climbing on at an elementary school play-
    ground, sought to recover damages for negligence from the defendant
    town of East Haven. The plaintiffs alleged that the playscape was in a
    decrepit condition, that the ladder was in a similar decrepit condition
    in that the fifth metal rung on the ladder was missing a bolt, that school
    officials and employees were aware of the dilapidated condition of the
    playscape, and that school employees were present at all times while
    students were playing on the playscape. The trial court granted the
    defendant’s motion for summary judgment on the ground of governmen-
    tal immunity and rendered judgment thereon, from which the plaintiffs
    appealed to this court. Held that the trial court properly granted the
    defendant’s motion for summary judgment; that court properly deter-
    mined that although the defendant owed the plaintiffs a duty of care,
    the inspection and repair of the playscape was a discretionary act and,
    thus, governmental immunity applied, and it found that the identifiable
    person-imminent harm exception to discretionary act immunity did not
    apply to the facts of the present case because the plaintiffs failed to
    demonstrate that the harm alleged was imminent, as the plaintiffs failed
    to demonstrate that the condition of the missing or loose bolt on the
    fifth rung of the ladder was apparent to the defendant or its officials,
    and that the probability of the child being injured was so high that the
    defendant had a clear and unequivocal duty to act to prevent harm.
    Argued November 27, 2017—officially released March 27, 2018
    Procedural History
    Action to recover damages for the defendant’s alleged
    negligence, brought to the Superior Court in the judicial
    district of New Haven, where the court, B. Fischer, J.,
    granted the defendant’s motion for summary judgment
    and rendered judgment thereon, from which the plain-
    tiffs appealed to this court. Affirmed.
    David N. Rosen, with whom, on the brief, was Alex-
    ander Taubes, for the appellants (plaintiffs).
    Rosalie D. Louis, with whom, on the brief, was Hugh
    F. Keefe, for the appellee (defendant).
    Opinion
    LAVINE, J. This personal injury action concerns the
    injuries the minor plaintiff, Mason McCarroll (child),
    sustained when he fell from a playscape he was climbing
    on at an elementary school playground.1 The plaintiffs
    appeal from the judgment of the trial court rendered
    when it granted the motion for summary judgment filed
    by the defendant, the town of East Haven.2 On appeal,
    the plaintiffs claim that, in granting the defendant’s
    motion for summary judgment, the court improperly
    concluded that their claims were barred by the doctrine
    of governmental immunity.3 We affirm the judgment of
    the trial court.
    The following facts are relevant to the plaintiffs’ claim
    on appeal. On April 12, 2012, the child was a kindergar-
    ten student at D.C. Moore Elementary School (school),
    a public school in East Haven. There was a wooden
    playscape on the school’s playground. During recess
    on the date in question, the child was attempting to
    climb the ladder of the playscape when he fell and
    sustained injuries to his left arm.
    The plaintiffs commenced the present action on Janu-
    ary 17, 2014. In their amended complaint of September
    22, 2015, the plaintiffs alleged that the playscape con-
    sisted of a tower, several slides, a wooden ramp, and
    a five rung ladder,4 and that it was intended for use
    by students at the school. They also alleged that the
    playscape was in a decrepit condition and that the pro-
    tective mulch underneath the playscape had eroded,
    resulting in a hard and uneven dirt surface. The ladder
    was in a similar decrepit condition in that the first four
    metal rungs were bolted to three parallel wooden posts
    and were in the shape of a ‘‘W’’ but the fifth rung was
    missing a bolt and was in the shape of a ‘‘U.’’ Moreover,
    they alleged that the wood at the base of the ‘‘U’’ had
    begun to wear away due to friction caused by the chain,
    that school officials and employees were aware of the
    playscape’s dilapidated condition, and that school
    employees were present at all times while students were
    playing on the playscape.
    The plaintiffs also alleged that when the child, who
    was climbing the ladder, reached the fifth rung, he
    slipped, fell to the ground, and sustained serious injuries
    to his left arm. The plaintiffs alleged that the defendant
    is liable for the child’s injuries and damages pursuant
    to General Statutes § 52-557n5 due to the negligence of
    the school officials.6 In its memorandum of law in sup-
    port of its motion for summary judgment, the defendant
    pointed out that the plaintiffs failed to allege that the
    acts and omissions of which they complained were
    ministerial in nature.
    On September 11, 2014, the defendant filed an
    amended answer to the plaintiffs’ January 27, 2014 com-
    plaint and four special defenses. The defendant alleged,
    among other special defenses, that it was ‘‘immune from
    suit’’ pursuant to the doctrine of governmental immu-
    nity.7 The plaintiffs denied the defendant’s special
    defenses. On March 17, 2015, the defendant filed a
    motion for summary judgment, along with supporting
    exhibits and affidavits, claiming that there were no gen-
    uine issues of material fact (1) that it owed no duty to
    the child to maintain the facilities at the school and, in
    the alternative, (2) that the plaintiffs’ negligence claims
    were barred by the doctrine of governmental immunity
    pursuant to § 52-557n in that the acts complained of
    were discretionary in nature and that no exception to
    the immunity doctrine applied.8 The plaintiffs filed an
    objection to the motion for summary judgment with a
    supporting memorandum of law and exhibits.
    The trial court heard the motion at short calendar on
    February 15, 2016, and granted the motion for summary
    judgment in a memorandum of decision issued on May
    9, 2016. The court found that the defendant owed the
    plaintiffs a duty of care because the board of education
    was the defendant’s agent despite the fact that the plain-
    tiffs had failed to cite the board of education as a defen-
    dant.9 Nonetheless, the court concluded that the
    inspection and repair of the playscape was a discretion-
    ary act; see General Statutes § 10-220 (a); and that the
    defendant was not liable to the plaintiffs for the child’s
    injuries because the identifiable victim-imminent harm
    exception to the doctrine of governmental immunity
    was inapplicable. The court, therefore, granted the
    motion for summary judgment in favor of the defendant.
    The plaintiffs appealed.
    We first set forth the standard of review by which we
    consider appeals from summary judgments. ‘‘Practice
    Book § 17-49 provides that 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. In deciding
    a motion for summary judgment, the trial court must
    view the evidence in the light most favorable to the
    nonmoving party. . . . The party moving for summary
    judgment has the burden of showing the absence of
    any genuine issue of material fact and that the party
    is, therefore, entitled to judgment as a matter of law.
    . . . The test is whether the party moving for summary
    judgment would be entitled to a directed verdict on the
    same facts. . . . Our review of the trial court’s decision
    to grant the [defendant’s] motion for summary judgment
    is plenary. . . .
    ‘‘The party opposing a motion for summary judgment
    must present evidence that demonstrates the existence
    of some disputed factual issue . . . . The movant has
    the burden of showing the nonexistence of such issues
    but the evidence thus presented, if otherwise sufficient,
    is not rebutted by the bald statement that an issue of
    fact does exist. . . . To oppose a motion for summary
    judgment successfully, the nonmovant must recite spe-
    cific facts . . . which contradict those stated in the
    movant’s affidavits and documents. . . . The opposing
    party to a motion for summary judgment must substanti-
    ate its adverse claim by showing that there is a genuine
    issue of material fact together with the evidence disclos-
    ing the existence of such an issue. . . . The existence
    of the genuine issue of material fact must be demon-
    strated by counteraffidavits and concrete evidence.’’
    (Citation omitted; internal quotation marks omitted.)
    DiPietro v. Farmington Sports Arena, LLC, 123 Conn.
    App. 583, 598–99, 
    2 A.3d 963
    (2010), rev’d on other
    grounds, 
    306 Conn. 107
    , 
    49 A.3d 951
    (2012).
    We now turn to the plaintiffs’ claim that the court
    improperly concluded that their negligence claims were
    barred by governmental immunity because the defec-
    tive condition of the bolt was apparent and the danger
    to the child was imminent. ‘‘The essential elements of
    a cause of action in negligence are well established:
    duty; breach of that duty; causation; and actual injury.
    . . . If a plaintiff cannot prove all of those elements,
    the cause of action fails.’’ (Internal quotation marks
    omitted.) Angiolillo v. Buckmiller, 
    102 Conn. App. 697
    ,
    711, 
    927 A.2d 312
    , cert. denied, 
    284 Conn. 927
    , 
    934 A.2d 243
    (2007).
    In the present case, after the court concluded that
    the defendant owed the plaintiffs a duty of care, it
    considered whether the plaintiffs’ claims were barred
    by the doctrine of governmental immunity. The court
    found that the plaintiffs failed to identify a policy that
    required the defendant to inspect or maintain the plays-
    cape in a particular manner and, therefore, the alleged
    acts of negligence were discretionary in nature. The
    court concluded that no reasonable juror could find
    that the defendant was liable to the plaintiffs because
    their claims were barred by the doctrine of governmen-
    tal immunity and that the identifiable person-imminent
    harm exception to governmental immunity did not
    apply because the harm to the child was not imminent.
    Our Supreme Court recently reviewed the law con-
    cerning governmental immunity regarding the imminent
    harm to an identifiable person exception in Martinez
    v. New Haven, 
    328 Conn. 1
    , 
    176 A.3d 531
    (2018). The
    court stated that ‘‘[§] 52-557n abandons the common-
    law principle of municipal sovereign immunity and
    establishes the circumstances in which a municipality
    may be liable for damages. . . . One such circum-
    stance is a negligent act or omission of a municipal
    officer acting within the scope of his or her employment
    or official duties. . . . [Section] 52-557n (a) (2) (B),
    however, explicitly shields a municipality from liability
    for damages to person or property caused by the negli-
    gent acts or omissions which require the exercise of
    judgment or discretion as an official function of the
    authority expressly or impliedly granted by law.’’ (Inter-
    nal quotation marks omitted.) 
    Id., 8. Our
    Supreme Court ‘‘has recognized an exception to
    discretionary act immunity that allows for liability 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 . . . . This
    identifiable person-imminent harm exception has three
    requirements: (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. . . . All three must be proven in order
    for the exception to apply.’’ (Citations omitted; footnote
    omitted; internal quotation marks omitted.) Edgerton
    v. Clinton, 
    311 Conn. 217
    , 230–31, 
    86 A.3d 437
    (2014).
    ‘‘[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 . . . properly left to the jury.’’ Strycharz v.
    Cady, 
    323 Conn. 548
    , 574, 
    148 A.2d 1011
    (2016).
    Our Supreme Court ‘‘has held that public school-
    children are an identifiable class of beneficiaries of a
    school system’s duty of care for purposes of the immi-
    nent harm to identifiable persons exception. . . .
    Indeed, [t]he only identifiable class of foreseeable vic-
    tims that [it has] recognized . . . is that of school-
    children attending public schools during school hours
    . . . .’’ (Citation omitted; internal quotation marks
    omitted.) Martinez v. New 
    Haven, supra
    , 
    328 Conn. 8
    –9. ‘‘[T]he 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.’’ (Internal quotation marks omitted.) 
    Id., 9, quoting
    Haynes v. Middletown, 
    314 Conn. 303
    , 322–23,
    
    101 A.3d 249
    (2014).
    ‘‘[I]n order to qualify under the imminent harm excep-
    tion, a plaintiff must satisfy a four-pronged test. First,
    the dangerous condition alleged by the plaintiff must
    be apparent to the municipal defendant. . . . We inter-
    pret this to mean that the dangerous condition must not
    be latent or otherwise undiscoverable by a reasonably
    objective person in the position and with the knowledge
    of the defendant. Second, the alleged dangerous condi-
    tion must be likely to have caused the harm suffered
    by the plaintiff. A dangerous condition that is unrelated
    to the cause of the harm is insufficient to satisfy the
    Haynes test. Third, the likelihood of the harm must be
    sufficient to place upon the municipal defendant a clear
    and unequivocal duty . . . to alleviate the dangerous
    condition. The court in Haynes tied the duty to prevent
    the harm to the likelihood that the dangerous condition
    would cause harm. . . . Thus, we consider a clear and
    unequivocal duty . . . to be one that arises when the
    probability that harm will occur from the dangerous
    condition is high enough to necessitate that the defen-
    dant act to alleviate the defect. Finally, the probability
    that harm will occur must be so high as to require the
    defendant to act immediately to prevent the harm.’’
    (Citations omitted; emphasis in original; footnote omit-
    ted; internal quotation marks omitted.) Williams v.
    Housing Authority, 
    159 Conn. App. 679
    , 705–706, 
    124 A.3d 537
    (2015), aff’d, 
    327 Conn. 338
    , 
    174 A.3d 137
    (2017).
    ‘‘[T]o meet the apparentness requirement, the plain-
    tiff must show that the circumstances would have made
    the government agent aware that his or her acts or
    omissions would likely have subjected the victim to
    imminent harm. . . . This is an objective test pursuant
    to which we consider the information available to the
    government agent at the time of [his or] her discretion-
    ary act or omission. . . . We do not consider what the
    government agent could have discovered after engaging
    in additional inquiry.’’ (Citations omitted; footnote omit-
    ted.) Edgerton v. 
    Clinton, supra
    , 
    311 Conn. 231
    .
    In the present case, the court found that the child
    was within the class of victims who were identifiable
    but, when analyzing the facts of the present case under
    the Williams test, the court determined that the harm
    he suffered was not imminent. The court stated that
    the plaintiffs had failed to produce evidence that the
    condition of the bolt on the fifth rung of the ladder was
    apparent to the defendant. The court noted that, rather
    than submitting evidence that the defendant was aware
    of, or was put on notice of the missing or loose bolt,
    the plaintiffs argued that the entire playscape was in
    an apparent, decrepit condition. The court reasoned
    that the harm that befell the child was not caused by
    the overall decrepit condition of the playscape but by
    the bolt that was missing or loose. The plaintiffs pre-
    sented no evidence that the condition of the bolt was
    evident to the defendant or its officials. The court also
    found that the plaintiffs failed to produce evidence of
    the third and fourth Williams prongs, that is, that the
    probability of injury to the child was so high that the
    defendant had a clear and unequivocal duty to act imme-
    diately to prevent harm. The court found that a reason-
    able juror could have found that thousands of
    schoolchildren had played on the decrepit playscape
    over the years and had not suffered an injury.10 The
    harm, it therefore concluded, was not imminent.
    On appeal, the plaintiffs argue that the court over-
    looked the evidence they presented in opposition to
    the motion for summary judgment or was mistaken
    that the condition of the bolt was not apparent to the
    defendant. They conceded, however, that their
    amended complaint that alleges that the bolt was miss-
    ing is at odds with Nichole McCarroll’s affidavit
    attesting that the bolt was loose.11 They also acknowl-
    edge that photographs of the ladder were ‘‘inadvertently
    omitted’’ from the affidavit.
    We have reviewed the entire record, the briefs and
    arguments of the parties and the court’s thorough mem-
    orandum of decision. On the basis of our review, we
    conclude that the court properly determined that the
    defendant’s duty with respect to the defendant’s alleged
    conduct was discretionary and the harm suffered by
    the child was not imminent. Whether the bolt was miss-
    ing or loose, the plaintiffs failed to demonstrate that
    the probability of the child being injured was so high
    that the defendant had a clear and unequivocal duty to
    act to prevent harm. We conclude, therefore, that the
    court properly granted the defendant’s motion for sum-
    mary judgment.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    The child commenced the present action by and through his mother,
    Nichole McCarroll. The child’s parents, the plaintiffs Nichole McCarroll and
    Ryan McCarroll, alleged that they sustained damages as a result of the
    child’s injuries.
    2
    In its motion for summary judgment, the defendant made two arguments:
    (1) it did not owe the child a duty of care as that duty falls on the board
    of education and (2) it was not liable for the plaintiffs’ injuries and loss on
    the ground of governmental immunity. The plaintiffs did not cite the board
    of education as a defendant in the present action. The court denied the
    defendant’s motion for summary judgment with respect to its claim that it
    did not owe the child a duty of care. The court concluded that the defendant
    owed the child a duty of care on the basis of agency. The defendant did
    not file a cross appeal but argues in its brief on appeal that the court
    improperly concluded that it owed the child a duty of care on the basis of
    agency. Because we conclude that the court properly granted the defendant’s
    motion for summary judgment on the ground of governmental immunity,
    we do not address the defendant’s agency argument.
    3
    On appeal, the plaintiffs argue that Haynes v. Middletown, 
    314 Conn. 303
    , 
    101 A.3d 249
    (2014), is controlling of the present case. Although Haynes
    controls the legal issues, the facts of the present case are distinguishable
    from those in Haynes in which teachers and school employees were aware
    of ongoing student horseplay in the locker room where school officials
    knew there was a broken and rusty locker. 
    Id., 308, 325.
    There is no evidence
    in the present case that the defendant was aware of the alleged dangerous
    and defective condition.
    4
    The rungs consisted of a metal chain that was covered by rubber tubing.
    5
    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 person 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; (B)
    negligence in the performance of functions from which the political subdivi-
    sion derives a special corporate profit or pecuniary benefit . . . . (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 discretion as
    an official function of the authority expressly or impliedly granted by law.
    ‘‘(b) Notwithstanding the provisions of subsection (a) of this section, a
    political subdivision of the state or any employee, officer or agent acting
    within the scope of his employment or official duties shall not be liable for
    damages to person or property resulting from: (1) The condition of natural
    land or unimproved property . . . (4) the condition of an unpaved road,
    trail or footpath, the purpose of which is to provide access to a recreational
    or scenic area, if the political subdivision has not received notice and has
    not had a reasonable opportunity to make the condition safe . . . (8) failure
    to make an inspection or making an inadequate or negligent inspection of
    any property, other than property owned or leased by or leased to such
    political subdivision, to determine whether the property complies with or
    violates any law or contains a hazard to health or safety, unless the political
    subdivision had notice of such a violation of law or such a hazard or unless
    such failure to inspect or such inadequate or negligent inspection constitutes
    a reckless disregard for health or safety under all the relevant circumstances
    . . . .’’ (Emphasis added.)
    6
    On the basis of our plenary review of the plaintiffs’ amended complaint,
    we note that they alleged several defects with respect to the playscape and
    the surrounding area, but failed to allege the proximate cause of the child’s
    injuries. See Miller v. Egan, 
    265 Conn. 301
    , 308, 
    828 A.2d 549
    (2003) (con-
    struction of pleadings question of law).
    7
    Section 52-557n provides that political subdivisions ‘‘shall not be liable
    for damages,’’ not that they shall be immune from suit. See Edgerton v.
    Clinton, 
    311 Conn. 217
    , 227 n.9, 
    86 A.3d 437
    (2014) (distinguishing sovereign
    immunity from suit from governmental immunity from liability).
    8
    In support of their motion for summary judgment, the defendant submit-
    ted an affidavit from Robert Parente, superintendent of operations for the
    defendant. Parente attested in part as follows:
    ‘‘5. The Town of East Haven has no duty to inspect the playscape located
    at the D.C. Moore School.
    ‘‘6. The East Haven Board of Education has the responsibility to inspect
    the facilities and playscape located at the D.C. Moore School.
    ‘‘7. The Town of East Haven does not have a duty to maintain the facilities
    and playscape located at the D.C. Moore School.
    ‘‘8. There are no rules, regulations, ordinances, or policies directing the
    Town of East Haven in how to maintain or inspect playscapes located
    at schools.’’
    9
    We offer no opinion as to whether the court properly determined that
    the defendant owed the plaintiffs a duty of care to maintain the school
    facilities. See footnote 2 of this opinion.
    10
    The plaintiffs take exception to the court’s conclusion, noting that the
    standard of review is that a reasonable juror could reach no other conclusion.
    We acknowledge that the court’s expression of the governing standard is
    unartful. On the basis of the evidence presented by the plaintiffs in opposition
    to the defendant’s evidence that it had no duty to inspect, we conclude that
    the court’s ultimate legal conclusion is not erroneous. See footnote 11 of
    this opinion.
    11
    In her affidavit, Nichole McCarroll attested in part: ‘‘We looked at the
    playscape shortly after [the child’s] fall and could see that the rung [the
    child] referred to was obviously loose. It was held in place by a bolt that
    was very loose. If you removed the bolt from the hole, which was easy to
    do because it was so loose, it would fall down and strike the wooden post
    that the bolt was inserted into. The place where the bolt struck the wood
    was visibly worn and damaged, obviously from being struck repeatedly over
    time by the bolt falling out.’’
    

Document Info

Docket Number: AC39260

Judges: Lavine, Keller, Pellegrino

Filed Date: 3/27/2018

Precedential Status: Precedential

Modified Date: 3/2/2024