The opinion
RICKY E. COSTA ET AL. v. PLAINVILLE BOARD OF
EDUCATION ET AL.
(AC 39204)
DiPentima, C. J., and Prescott and Flynn, Js.
Syllabus
The plaintiffs, M and her son R, sought to recover damages for negligence
from the defendants, the town of Plainville, its board of education, and
the town’s high school principal. R, who was a high school student,
sustained injuries during a basketball game at a school sponsored picnic,
which was held during regular school hours at a facility off campus.
The plaintiffs alleged that at the time of R’s injury, no school personnel
were present at or supervising the basketball court where the injury
occurred. The trial court granted the defendants’ motion for summary
judgment on all counts of the plaintiffs’ amended complaint on the
ground of governmental immunity, concluding that the alleged conduct
of the defendants involved a discretionary duty pursuant to statute (§ 52-
557n [a] [2] [B]). The plaintiffs appealed to this court claiming that
summary judgment was improper because issues of material fact existed
as to whether the defendants were entitled to immunity because their
alleged acts and omissions were ministerial in nature and as to whether
the identifiable person-imminent harm exception to governmental immu-
nity applied. Held that the trial court properly rendered summary judg-
ment in favor of the defendants as there was no genuine issue of material
fact that the defendants were entitled to governmental immunity:
although the plaintiffs suggested that the defendants’ duty to supervise
students during school sanctioned events such as the picnic was ministe-
rial, the general safety guidelines and school board policies on which
the plaintiffs relied did not constitute a clear directive that negated the
need for the defendants to exercise judgment and discretion in providing
adequate supervision; furthermore, the plaintiffs failed to demonstrate
that R was an identifiable person for the purposes of the identifiable
person-imminent harm exception to discretionary act immunity, as
although schoolchildren who are on school property during school hours
constitute a narrow, identifiable class of foreseeable victims, school-
children who voluntarily participate in nonmandatory school sponsored
activities do not fall within that identifiable class, and here, R was neither
required to attend the picnic nor to participate in the basketball game
during which he was injured.
Argued May 18—officially released August 15, 2017
Procedural History
Action to recover damages for personal injuries sus-
tained by the named plaintiff as a result of the defen-
dants’ alleged negligence, brought to the Superior Court
in the judicial district of New Britain, where the court,
Hon. Joseph M. Shortall, judge trial referee, granted in
part the defendants’ motion to strike; thereafter, the
complaint was withdrawn as to the defendant Jeffrey
C. Kitching; subsequently, the court granted the motion
for summary judgment filed by the named defendant
et al. and rendered judgment thereon; thereafter, the
court denied the plaintiffs’ motion to reargue, and the
plaintiffs appealed to this court. Affirmed.
Harold J. Geragosian, for the appellants (plaintiffs).
Beatrice S. Jordan, for the appellees (named defen-
dant et al.).
Opinion
PRESCOTT, J. The plaintiffs, Ricky E. Costa, who
suffered serious injury to his right eye during a pick-
up basketball game at a Plainville High School senior
class picnic, and his mother, Maria Costa, appeal from
the summary judgment rendered on all counts in favor
of the defendants, the town of Plainville (town), the
town’s Board of Education (board), and Steven LePage,
Plainville High School’s principal.1 The plaintiffs claim
that the court improperly rendered summary judgment
on the basis of governmental immunity. The plaintiffs
contend that the evidence presented raised a genuine
issue of material fact regarding whether discretionary
act immunity applied and whether Ricky Costa was
an identifiable person for purposes of the identifiable
person-imminent harm exception to governmental
immunity. We disagree and, accordingly, affirm the
judgment of the trial court.
The following undisputed material facts, as set forth
by the trial court or gleaned from the summary judg-
ment record, and procedural history are relevant to
our resolution of the plaintiffs’ claims. Plainville High
School conducted its annual senior class picnic on June
17, 2011. The picnic occurred during regular school
hours, but was held off campus at a YMCA campground
facility in Burlington that includes a softball field, bas-
ketball court, and swimming pool. Students were not
obligated to go to the picnic, but Ricky Costa voluntarily
attended it and elected to participate in a pick-up bas-
ketball game in which he was injured. His injury
occurred when another player poked him in the eye
while they were attempting to get the ball.
LePage generally supervised the picnic along with
several teachers and a school nurse, none of whom,
however, was stationed near or monitoring the basket-
ball court. Accordingly, no school personnel were pre-
sent at or supervising the basketball court at the time
the injury occurred. Prior to Ricky Costa’s injury, no
one had been injured at the picnic nor had any issue
arisen regarding student behavior. Moreover, no behav-
ioral issues or basketball related injuries had occurred
at senior class picnics in prior years.
At the time of the picnic, the school board had in
place a supervision policy that provided, inter alia, that
school sponsored activities ‘‘must be well-planned and
organized and must provide for the adequate supervi-
sion and welfare of participating students at all times.’’
Guidelines for School Sponsored Activities and Organi-
zations, Policy No. 6145.5 (2005).
The plaintiffs commenced the underlying action on
June 13, 2013. The operative amended complaint was
filed on July 14, 2015, and contained five counts. Counts
one through three sounded in negligence and were
brought by Ricky Costa against the board, the town,
and LePage. Count four asserts a claim for damages
against the board premised upon LePage’s right to
indemnification pursuant to General Statutes § 10-235.2
Count five was brought by Maria Costa against the
board and was derivative of the negligence claims of
her son. She sought reimbursement for expenditures
she made related to her son’s medical care. The defen-
dants filed an answer and special defenses, including
that all counts were barred by governmental immunity.
The defendants later filed a motion for summary judg-
ment, arguing that there was no genuine issue of mate-
rial fact that Ricky Costa’s negligence counts were
barred by governmental immunity; that Maria Costa’s
claim against the defendants was derivative of her son’s
negligence counts and, thus, was barred; and that the
indemnification count failed as a matter of law. The
plaintiffs filed a memorandum in opposition to the
motion for summary judgment claiming that Ricky
Costa fell within the identifiable person-imminent harm
exception to governmental immunity and that the defen-
dants were not entitled to governmental immunity
because they breached a ministerial rather than discre-
tionary duty to supervise students in their care. The
motion was heard by the court, Hon. Joseph M. Shortall,
judge trial referee, who subsequently issued a memo-
randum of decision on March 23, 2016, granting sum-
mary judgment on all counts in favor of the defendants.
The court concluded as a matter of law that the alleged
conduct of the defendants involved a discretionary duty
for which they were entitled to governmental immunity
and that Ricky Costa’s voluntary participation in the
picnic denied him status as an ‘‘identifiable person’’
for purposes of the identifiable person-imminent harm
exception. This appeal followed.
‘‘The standards governing our review of a trial court’s
decision to grant a motion for summary judgment are
well established. 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 seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under applicable principles of substantive
law, entitle him to a judgment as a matter of law . . .
and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . . A material fact
. . . [is] a fact which will make a difference in the result
of the case.’’ (Internal quotation marks omitted.) Lamar
v. Brevetti, 173 Conn. App. 284, 288–89, A.3d
(2017).
Having thoroughly reviewed the summary judgment
record, the briefs of the parties, and the applicable law,
we conclude that the court properly rendered summary
judgment in favor of the defendants with respect to the
entirety of the complaint.
First, the court properly determined that the defen-
dants’ alleged negligent acts or omissions were discre-
tionary in nature and not ministerial acts.3 General
Statutes § 52-557n, which generally abrogated common-
law governmental immunity, ‘‘distinguishes between
discretionary acts and those that are ministerial in
nature, with liability generally attaching to a municipal-
ity [or its agents] only for negligently performed ministe-
rial acts, not for negligently performed discretionary
acts.’’ DiMiceli v. Cheshire, 162 Conn. App. 216, 224,
131 A.3d 771 (2016). Moreover, ‘‘[t]here is a difference
between laws that impose general duties on officials
and those that mandate a particular response to specific
conditions.’’ Bonington v. Westport, 297 Conn. 297, 308,
999 A.2d 700 (2010). Although the plaintiffs suggest
that the defendants’ duty to supervise students during
school sanctioned events such as the senior picnic was
ministerial rather than discretionary in nature, the plain-
tiffs rely upon general safety guidelines and school
board policies that, while requiring adequate supervi-
sion of students, fail to prescribe the precise nature or
scope of such supervision or the manner in which it
should be carried out. In other words, the plaintiffs
have cited no clear directive that negated the need for
the defendants to exercise judgment and discretion in
providing adequate supervision. See Violano v. Fernan-
dez, 280 Conn. 310, 323, 907 A.2d 1188 (2006).
Second, the plaintiffs failed to demonstrate that there
was a genuine issue of material fact as to whether the
identifiable person-imminent harm exception to discre-
tionary act immunity applied under the facts of the
present case. Specifically, the plaintiffs failed to demon-
strate that a genuine issue of material fact existed as
to whether Ricky Costa was an ‘‘identifiable person’’
for purposes of the exception. The identifiable-person
imminent harm exception ‘‘applies [if] the circum-
stances make it apparent to the public officer that his
or her failure to act would be likely to subject an identifi-
able person to imminent harm . . . . This exception
has three elements: (1) an imminent harm; (2) an identi-
fiable 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. . . . This exception is applicable
only in the clearest cases.’’ (Citations omitted; internal
quotation marks omitted.) Jahn v. Board of Education,
152 Conn. App. 652, 661–62, 99 A.3d 1230 (2014).
‘‘In Burns [v. Board of Education, 228 Conn. 640,
649–50, 638 A.2d 1 (1994)], the court recognized school-
children who are on school property during school
hours as one identifiable class of foreseeable victims.
. . . This class has been consistently recognized by
the courts of our state as narrowly drawn.’’ (Citation
omitted.) Jahn v. Board of Education, supra, 152 Conn.
App. 662. The plaintiffs’ only argument in support of
its claim that Ricky Costa was an identifiable person
was that he belonged to the identifiable class of school-
children recognized in Burns. In Jahn, however, this
court held that school children who voluntarily partici-
pate in nonmandatory school sponsored activities do
not fall within the identifiable class recognized in
Burns. Id., 667–68. Accordingly, the student in Jahn,
who was injured during an extracurricular swim meet,
did not qualify as an identifiable person.
Here, it is undisputed that Ricky Costa was not
required to attend the senior picnic, but did so volunta-
rily. He also voluntarily participated in the pick-up bas-
ketball game in which he was injured. We agree with
the trial court that Ricky Costa’s voluntary participation
did not grant him the status of an identifiable person
entitled to protection by school authorities.4
In sum, the defendants’ duty to supervise the picnic
was discretionary in nature, and Ricky Costa did not
qualify as an identifiable person for purposes of the
identifiable person-imminent harm exception. Accord-
ingly, the court properly determined that the defendants
were entitled to governmental immunity and granted
summary judgment as a matter of law.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Jeffrey C. Kitching, Plainville’s superintendent of schools, also was
named as a defendant in the original complaint, but the action later was
withdrawn as to him.
2
Although not at issue in the present appeal, we note that § 10-235 does
not create ‘‘a direct cause of action allowing a person allegedly injured by
a negligent employee of a board of education to sue the board directly.’’
Logan v. New Haven, 49 Conn. Supp. 261, 873 A.2d 275 (2005).
3
It is unclear from the plaintiffs’ brief on appeal whether they have raised
as a claim that the court improperly determined that the defendants were
entitled to discretionary act immunity. When asked at oral argument, the
plaintiffs’ attorney was equivocal at best.
4
Because we agree that Ricky Costa was not an ‘‘identifiable person’’ for
the purpose of this exception to governmental immunity, we do not consider
whether the court also correctly determined that he was not subjected to
‘‘imminent harm.’’