McCarroll v. East Haven , 180 Conn. App. 515 ( 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.’’