Maselli v. Regional School District No. 10

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APPENDIX

THERESA MASELLI v. REGIONAL SCHOOL

DISTRICT NUMBER 10 ET AL.*

Superior Court, Judicial District of Hartford

File No. CV-XX-XXXXXXX-S

Memorandum filed June 11, 2018

Proceedings

Memorandum of decision on defendants’ motion to

dismiss. Motion granted.

A. Paul Spinella, for the plaintiff.

Kevin R. Kratzer and Ashley A. Noel, for the

defendants.

Opinion

ROBAINA, J.

FACTS

This action was brought on behalf of Angelina

Maselli, a minor, through her mother and next friend,

Theresa Maselli, seeking damages for injuries Angelina

sustained when she was hit in the face with a ball during

soccer practice.1 The incident took place at Har-Bur

Middle School (middle school) in Burlington, where

Angelina was a member of the school’s soccer team.

During the practice, the team engaged in a scrimmage

inside the gymnasium, and its coach, Robert Samu-

dosky, participated as a member of one of the teams.

At some point during the scrimmage, Samudosky

kicked the ball, which then hit Angelina in the face.

On July 13, 2016, the plaintiff filed an amended com-

plaint asserting six claims against the defendants:

Regional School District Number 10, which serves the

towns of Burlington and Harwinton; its superintendent,

Alan Beitman; the middle school’s principal, Kenneth

Smith; and Samudosky, a gym teacher for the middle

school as well as the girls’ team soccer coach. Counts

one through four are against Samudosky only, and

counts five and six are against all defendants. In her

amended complaint, the plaintiff alleges the following

facts. On October 28, 2013, Angelina was participating in

a mandatory soccer practice supervised by Samudosky,

and, during the practice, Samudosky violently kicked

a soccer ball into Angelina’s face. Samudosky did not

notify a school nurse, paramedics, or Angelina’s parents

and, despite the fact that he is not a doctor, conducted

an assessment of Angelina and determined that she had

not suffered a concussion and allowed her to continue

to play. Angelina, however, had suffered a concussion.

The defendants failed to inform the plaintiff of

Angelina’s injury, which delayed her medical diagnosis

and treatment.

On August 25, 2017, the defendants moved for sum-

mary judgment as to all counts of the plaintiff’s com-

plaint on the grounds that (1) the plaintiff’s negligence

claims are barred by governmental immunity, (2) to

the extent governmental immunity does not apply, the

plaintiff’s negligence claims fail as a matter of law, (3)

Samudosky’s conduct was not extreme and outrageous,

(4) the claim of assault and battery fails as a matter of

law, and (5) the recklessness claim fails as a matter of

law, and the defendants’ conduct did not cause

Angelina’s injuries. Along with each party’s memoran-

dum of law, the court has also received a number of

exhibits, including deposition transcripts and affidavits.

DISCUSSION

Practice Book § 17-49 provides that summary judg-

ment ‘‘shall be rendered forthwith if the pleadings, affi-

davits 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.’’ (Internal quotation marks

omitted.) Stuart v. Freiberg, 316 Conn. 809, 820–21, 116

A.3d 1195 (2015). ‘‘The party seeking summary judg-

ment has the burden of showing the absence of any

genuine issue [of] material facts which, under applica-

ble principles of substantive law, entitle him to a judg-

ment 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 mate-

rial fact. . . . A material fact . . . [is] a fact which will

make a difference in the result of the case.’’ (Internal

quotation marks omitted.) Id., 821.

‘‘To satisfy his burden the movant must make a show-

ing that it is quite clear what the truth is, and that

excludes any real doubt as to the existence of any

genuine issue of material fact. . . . When documents

submitted in support of a motion for summary judgment

fail to establish that there is no genuine issue of material

fact, the nonmoving party has no obligation to submit

documents establishing the existence of such an issue.

. . . Once the moving party has met its burden, how-

ever, the opposing party must present evidence that

demonstrates the existence of some disputed factual

issue. . . . It is not enough, however, for the opposing

party merely to assert the existence of such a disputed

issue. Mere assertions of fact . . . are insufficient to

establish the existence of a material fact and, therefore,

cannot refute evidence properly presented to the court

under Practice Book § [17-45].’’ (Internal quotation

marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223,

228, 116 A.3d 297 (2015).

‘‘[S]ummary judgment is appropriate only if a fair and

reasonable person could conclude only one way. . . .

[A] summary disposition . . . should be on evidence

which a jury would not be at liberty to disbelieve and

which would require a directed verdict for the moving

party. . . . [A] directed verdict may be rendered only

where, on the evidence viewed in the light most favor-

able to the nonmovant, the trier of fact could not reason-

ably reach any other conclusion than that embodied in

the verdict as directed.’’ (Citations omitted; emphasis

in original; internal quotation marks omitted.) Dugan

v. Mobile Medical Testing Services, Inc., 265 Conn. 791,

815, 830 A.2d 752 (2003). ‘‘While [a party’s] deposition

testimony is not conclusive as a judicial admission;

General Statutes § 52-200; it is sufficient to support

entry of summary judgment in the absence of contradic-

tory competent affidavits that establish a genuine issue

as to a material fact.’’ Collum v. Chapin, 40 Conn. App.

449, 450 n.2, 671 A.2d 1329 (1996).

I

GOVERNMENTAL IMMUNITY

Under the common law, a municipality was generally

immune from liability for its tortious acts. Martel v.

Metropolitan District Commission, 275 Conn. 38, 47,

881 A.2d 194 (2005). Our Supreme Court has ‘‘recog-

nized, however, that governmental immunity may be

abrogated by statute.’’ (Internal quotation marks omit-

ted.) Id. General Statutes § 52-557n (a) (1) provides in

relevant part: ‘‘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 negli-

gent acts or omissions of such political subdivision or

any employee, officer or agent thereof acting within

the scope of his employment or official duties . . . .’’

‘‘[Section] 52-557n (a) (2) (B), however, explicitly

shields a municipality from liability for damages to per-

son or property caused by the negligent acts or omis-

sions which require the exercise of judgment or discre-

tion as an official function of the authority expressly

or impliedly granted by law.’’ (Internal quotation marks

omitted.) Haynes v. Middletown, 314 Conn. 303, 312,

101 A.3d 249 (2014).

There are three exceptions to discretionary act immu-

nity: ‘‘(1) the alleged conduct involves malice, wanton-

ness or intent to injure; (2) a statute provides for a cause

of action against a municipality or municipal official for

failure to enforce certain laws; or (3) 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 . . . .’’ (Internal quotation

marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420,

434 n.13, 165 A.3d 148 (2017). The identifiable person-

imminent harm exception has three elements: ‘‘(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

. . . . [Our Supreme Court has] stated previously that

this exception to the general rule of governmental

immunity for employees engaged in discretionary activi-

ties has received very limited recognition in this state.

. . . If the [plaintiff fails] to establish any one of the

three prongs, this failure will be fatal to [the] claim

that [the plaintiff comes] within the imminent harm

exception.’’ (Internal quotation marks omitted.) Id., 435.

Our Supreme Court has ‘‘held that a party is an identi-

fiable person when he or she is compelled to be some-

where. . . . Accordingly, [t]he only identifiable class

of foreseeable victims that [the court has] recognized

. . . is that of schoolchildren attending public schools

during school hours because: they were intended to be

the beneficiaries 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.’’

(Citation omitted; internal quotation marks omitted.)

Id., 436; see also Strycharz v. Cady, 323 Conn. 548,

575–76, 148 A.3d 1011 (2016) (‘‘[o]ur decisions under-

score . . . 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’’ (internal quotation

marks omitted)).

This rule has been narrowly applied outside of the

schoolchildren context, and, in fact, our Supreme Court

has recognized an identifiable person under this excep-

tion only once, in Sestito v. Groton, 178 Conn. 520, 423

A.2d 165 (1979), and this case has since been limited

to its facts because it was decided before the three-

pronged imminent harm test was adopted. See Edgerton

v. Clinton, 311 Conn. 217, 240, 86 A.3d 437 (2014). Since

then, although our appellate courts have addressed

claims that a plaintiff is an identifiable person or mem-

ber of an identifiable class of foreseeable victims, nei-

ther the Supreme Court nor the Appellate Court has

broadened the definition. See, e.g., Grady v. Somers,

294 Conn. 324, 356, 984 A.2d 684 (2009) (permit holder

injured at refuse transfer station owned by town was

not member of class of identifiable persons despite

being paid permit holder and resident of town); Cotto

v. Board of Education, 294 Conn. 265, 279, 984 A.2d 58

(2009) (youth director injured in school bathroom was

not identifiable person subject to imminent harm

because, if he ‘‘was identifiable as a potential victim of

a specific imminent harm, then so was every participant

and supervisor in the [summer youth] program who

used the bathroom’’); Thivierge v. Witham, 150 Conn.

App. 769, 780, 93 A.3d 608 (2014) (visitor to dog owner’s

property who was bitten by dog after municipal officer’s

alleged failure to enforce restraint order was not identi-

fiable victim because ‘‘any number of potential victims

could have come into contact with the dog following

[the municipal officer’s] issuance of the restraint

order’’); cf. St. Pierre v. Plainfield, supra, 326 Conn.

437–38.

A

Negligence Claims Against Samudosky

In counts three and four, the plaintiff asserts claims

of negligent infliction of emotional distress and negli-

gence, respectively, against Samudosky. The defen-

dants move for summary judgment as to these negli-

gence claims on the ground that they are barred by

governmental immunity and that no exception applies.

The plaintiff argues that Angelina was an identifiable

individual because she was attending a soccer practice

supervised by Samudosky and was standing six feet

away from him when he forcefully kicked the ball. A

review of the evidence submitted in support of and in

opposition to the motion for summary judgment,

viewed in a light most favorable to the plaintiff, along

with established case law, demonstrates the absence

of any genuine issue of material fact that Angelina was

not an identified individual.

In a signed and sworn affidavit, Beitman attests that

the girls’ soccer team is a voluntary extracurricular

activity and that practices are held after the mandatory

school hours have concluded. Samudosky testified at

his deposition that practices run between 3 and 5 p.m.

and that school academic courses never go past 3 p.m.

Angelina testified at her deposition that you have to try

out to be on the girls’ soccer team, that you are not

required to be on the team and that she chose to be

on the soccer team. She further testified that soccer

practice began once your last academic class finished,

between 2:45 p.m. and 3 p.m. The plaintiff attempts to

frame Angelina’s participation as involuntary by

describing the practices as mandatory. The plaintiff

attests in a signed and sworn affidavit that practices

were a mandatory event and that players were told:

‘‘If you don’t come to practice, you don’t play.’’ This

argument fails to comprehend the key reason why

schoolchildren were found to be a foreseeable class—

because they are statutorily required to attend school—

and has previously been rejected.

In Jahn v. Board of Education, 152 Conn. App. 652,

99 A.3d 1230 (2014), the plaintiff high school student

argued that there was an issue of fact as to whether

his participation in the swim team was voluntary

because he attested in his affidavit that the warm-up

drill was mandatory. Id., 667. The court rejected this

argument, stating: ‘‘[W]hile it may be true that the plain-

tiff was ‘required’ to participate in the warm-up drill if

he also desired to participate in the swim meet, the fact

remains that nothing required the plaintiff to participate

in the swim meet or, for that matter, the swim team,

in the first place. The plaintiff chose to participate in

the swim team when he joined it. He has not argued

that any statute or other source of law compelled him

to join the team or to participate in the warm-up drill.’’

Id. The Appellate Court thus found that the plaintiff

did not qualify as a member of an identifiable class of

schoolchildren. Id., 667–68.

Similarly, a student playing in a pickup basketball

game during a senior class picnic did not qualify as an

identifiable person. See Costa v. Board of Education,

175 Conn. App. 402, 408–409, 167 A.3d 1152, cert. denied,

327 Conn. 961, 172 A.3d 801 (2017). In Costa, the court

stated: ‘‘Here, it is undisputed that [the plaintiff] was

not required to attend the senior picnic, but did so

voluntarily. He also voluntarily participated in the

pickup basketball game in which he was injured. We

agree with the trial court that [the plaintiff’s] voluntary

participation did not grant him the status of an identifi-

able person entitled to protection by school authori-

ties.’’ Id., 409. In a case outside the school context,

our Supreme Court has also recently reaffirmed the

principle that one whose presence and/or participation

is voluntary and not compelled by statute or other law,

is not an identifiable person. See St. Pierre v. Plainfield,

supra, 326 Conn. 424, 432, 438. ‘‘In the present case,

the plaintiff was in no way compelled to attend the

aqua therapy sessions provided by (the rehabilitation

center). Instead, he voluntarily decided to use (the cen-

ter’s) services. Under established case law, this choice

precludes us from holding that the plaintiff was an

identifiable person or a member of an identifiable class

of persons.’’ Id.

Just like the plaintiffs in the previously discussed

cases, Angelina voluntarily chose to participate in the

soccer team. She was not required to be on the team

and, in fact, students had to try out in order to make

the team. As in Jahn, the mere fact that participation

in practices may have been mandatory does not negate

that, overall, participation in the soccer team was volun-

tary. See Jahn v. Board of Education, supra, 152 Conn.

App. 667. Angelina chose to participate in the soccer

team, just like the plaintiff in Jahn chose to participate

in the swim team and [the plaintiff in Costa] chose to

attend the senior picnic and participate in the pickup

basketball game. Accordingly, Angelina is not an identi-

fied person for purposes of the exception. Further, even

if Angelina was considered identifiable in the sense that

Samudosky knew her identity and of her presence at

practice, she would still not be an identifiable person

for purposes of the exception. The evidence establishes

that Samudosky was looking down at the ball when he

kicked it, and, therefore, any girl on the opposing team

could have been hit by the ball. See, e.g., Cotto v. Board

of Education, supra, 294 Conn. 279 (determining that

director of youth program was not identifiable victim

when he slipped in wet bathroom because ‘‘any person

using the bathroom could have slipped at any time’’

(emphasis omitted)). Because the failure to establish

any one of the prongs for the exception is fatal to a

plaintiff’s claim that they fall within it, the negligence

claims against Samudosky are barred by governmen-

tal immunity.

B

Negligence Against All Defendants

In count five, the plaintiff alleges negligence against

all of the defendants, based on the response to the

incident, such as their failure to immediately inform

her of Angelina’s injury and their failure to adequately

address Angelina’s educational needs. The plaintiff

again does not contest the discretionary nature of the

defendants’ duties but argues that Angelina falls within

the identifiable victim-imminent harm exception. The

defendants argue that Angelina was not subject to immi-

nent harm because, at the time of the alleged action

and/or inaction, harm to Angelina had already occurred.

Additionally, as the injury occurred during a routine

soccer practice and was one that is an inherent conse-

quence, it was not apparent to the defendants that a

failure to immediately ascertain what had occurred

would subject Angelina to imminent harm. The plaintiff

frames the dangerous condition as an undiagnosed head

injury and that Angelina faced the imminent harm of a

failure to diagnose, treat, and mitigate the effects of

her concussion.

‘‘[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.) Martinez v.

New Haven, 328 Conn. 1, 9, 176 A.3d 531 (2018). The

focus is on ‘‘the magnitude of the risk that the condition

created’’; (emphasis in original) Haynes v. Middletown,

supra, 314 Conn. 322; rather than ‘‘the duration of the

alleged dangerous condition . . . .’’ (Emphasis in origi-

nal.) Id. As for the apparentness prong, ‘‘to meet the

apparentness requirement, the plaintiff 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 [courts]

consider the information available to the government

agent at the time of her discretionary act or omission.’’

(Citation omitted.) Edgerton v. Clinton, supra, 311

Conn. 231.

On the basis of the summary judgment record,

Angelina cannot be said to have been subject to an

imminent harm that was apparent to the defendants.

Soccer is a contact sport; see Jaworski v. Kiernan, 241

Conn. 399, 406–407, 696 A.2d 332 (1997); and a player

getting hit by a ball, even in the face, whether during

a practice scrimmage or an actual game, is a not so

uncommon of a risk. In the present case, Angelina

briefly had a bloody nose and felt dizzy. She had a

headache, about which she told Samudosky; however,

she did not ask to sit out the rest of practice and was

able to walk from the indoor gym to the field outside.

Under these circumstances, it could not have been

apparent to the defendants that Angelina had suffered

a concussion or that a failure to immediately contact

the plaintiff would subject Angelina to the imminent

harm of exacerbated postconcussion symptoms.

As to the plaintiff’s allegations regarding Angelina’s

exacerbated postconcussion symptoms and diminished

academic performance, Angelina’s having to repeat the

seventh grade was far too attenuated from the incident

and the defendants’ alleged conduct to be considered

imminent. See Brooks v. Powers, 328 Conn. 256, 274,

178 A.3d 366 (2018) (‘‘[decedent’s] drowning was too

attenuated from the risk of harm created by the defen-

dants’ conduct for a jury reasonably to conclude that

it was imminent’’). A jury could not reasonably conclude

that the defendants, in failing to inform the plaintiff of

Angelina’s being hit with a ball or to investigate the

incident, ignored a risk that Angelina would have to

repeat an entire year of schooling. As neither the immi-

nent nor apparentness prong can be met, Angelina does

not fall within the identifiable victim-imminent harm

exception and, therefore, the negligence claim in count

five is barred by governmental immunity.

II

INTENTIONAL TORTS

A

Assault and Battery

‘‘A civil assault is the intentional causing of imminent

apprehension of harmful or offensive contact in

another. 1 Restatement (Second), Torts [§ 21 [1965].’’

DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn.

App. 590, 594, 501 A.2d 768 (1985). ‘‘[A]ctual, physical

contact (technically defined as ‘battery’) is not neces-

sary to prove civil assault’’; McInerney v. Polymer

Resources, LTD, Superior Court, judicial district of New

Britain, Docket No. CV-XX-XXXXXXX-S (October 22, 2012)

(Swienton, J.) (54 Conn. L. Rptr. 873, 874); and, thus,

‘‘[i]t is more technically correct in Connecticut civil tort

law to refer to what is commonly called an ‘assault’ as

a ‘battery.’ However, the cases rarely make that distinc-

tion.’’ Carragher v. DiPace, Docket No. CV-XX-XXXXXXX-

S, 2012 WL 6743563, *4 (Conn. Super. November 30,

2012) (Wahla, J.).

‘‘An actor is subject to liability to another for battery

if (a) he acts intending to cause a harmful or offensive

contact with the person of the other or a third person,

or an imminent apprehension of such a contact, and

(b) a harmful contact with the person of the other

directly or indirectly results.’’ (Internal quotation marks

omitted.) Alteiri v. Colasso, 168 Conn. 329, 334 n.3, 362

A.2d 798 (1975), quoting 1 Restatement (Second), supra,

§ 13. ‘‘[A]n actionable assault and battery may be one

committed wilfully or voluntarily, and therefore inten-

tionally; one done under circumstances showing a reck-

less disregard of consequences; or one committed negli-

gently.’’ (Internal quotation marks omitted.) Markey v.

Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985).

Intentional conduct is, therefore, not always required

for assault and battery; see Clinch v. Generali-U.S.

Branch, 110 Conn. App. 29, 40, 954 A.2d 223 (2008),

aff’d, 293 Conn. 774, 980 A.2d 313 (2009); nevertheless,

on the basis of the allegations in the plaintiff’s amended

complaint, count one is properly construed as a claim

of intentional and/or reckless and wanton assault and

battery. Thus, the defendants’ motion for summary judg-

ment will be evaluated against these two theories.

1

Intentional

‘‘A wilful or malicious injury is one caused by design.

Wilfulness and malice alike import intent. . . . [Its]

characteristic element is the design to injure either actu-

ally entertained or to be implied from the conduct and

circumstances.’’ (Internal quotation marks omitted.)

Markey v. Santangelo, supra, 195 Conn. 78. ‘‘[T]hat the

act resulting in the injury was intentional in the sense

that it was the voluntary action of the person involved’’

is insufficient to constitute a wilful or malicious injury;

instead, ‘‘[n]ot only the action producing the injury but

the resulting injury must be intentional.’’ (Internal quo-

tation marks omitted.) Alteiri v. Colasso, supra, 168

Conn. 333. ‘‘It is not necessary that the precise injury

that occurred be the one intended, so long as the injury

was the direct and natural consequences of the intended

act.’’ American National Fire Ins. Co. v. Schuss, 221

Conn. 768, 779, 607 A.2d 418 (1992).2

The defendants argue that there is no genuine issue

of material fact that Samudosky did not intend to injure

Angelina and, therefore, the plaintiff’s claim of inten-

tional assault and battery fails as a matter of law.

It is undisputed that Angelina’s injury took place dur-

ing a scrimmage, or a simulated game; see Merriam-

Webster’s Collegiate Dictionary (11th Ed. 2003); where

she and Samudosky were on opposing teams. Angelina

Deposition, p. 35, ll. 5–13. Prior to Angelina’s being hit

with the ball, Samudosky had the ball and was

defending his end, while Angelina and her team moved

up to challenge, with her in the lead. She and her team-

mates were about six feet away and, although she was

facing him, he was looking down when he kicked the

ball, which then hit her in the face. The plaintiff asserts

that there is an issue of fact as to intent because Samu-

dosky and Angelina were facing each other when he

kicked the ball as hard as he could. Angelina, however,

repeatedly testified that Samudosky was looking down

at the ball when he kicked it and that he kicked it with

a lot of force because he was trying to clear it. She

stated that, because he was in a defensive position, he

would have wanted to get the ball away from his goal,

upon which Angelina and the other girls on her team

were advancing. Finally, she testified that she did not

believe he kicked the ball at her on purpose or intended

to hit her with the ball.

On the basis of the foregoing, no fair and reasonable

jury could find that in kicking the ball, Samudosky

intended to hit Angelina with the ball or injure her. The

plaintiff asserts that there is a factual dispute because

Samudosky testified at his deposition that he does not

recall who kicked the ball that hit Angelina. This does

not raise a genuine issue of material fact because not

only the act producing the injury but the injury itself

must be intentional. See Markey v. Santangelo, supra,

195 Conn. 77; Alteiri v. Colasso, supra, 168 Conn. 333.

Thus, even viewing the evidence in a light most favor-

able to the plaintiff and taking as true that Samudosky

did in fact intentionally kick the ball, the record does

not support a conclusion that his purpose in kicking

the ball was to hit and injure Angelina. In the midst of

a scrimmage, Samudosky kicked the ball hard, away

from his team’s goal, as players on the opposing team,

including Angelina, were moving up to challenge. He

looked down at the ball to kick it, while those players,

including Angelina, were advancing, with Angela in the

lead, kicked the ball, and she was hit in the face. The

only rational inference a fact finder could make is that

which Angelina herself made: that he was trying to clear

the ball, i.e., get the ball away from the goal and from

the members of the opposing team, including Angelina.

The injury suffered by Angelina was not by intentional

design; the only reasonable and logical conclusion that

a jury could reach is that this was a simple accident,

an inherent part of a contact sport. See Jaworski v.

Kiernan, supra, 241 Conn. 406–407. Accordingly, there

is no genuine issue of material fact that Samudosky

did not commit an intentional assault and battery as a

matter of law.

2

Reckless and Wanton

‘‘Wanton misconduct is reckless misconduct. . . . It

is such conduct as indicates a reckless disregard of the

just rights or safety of others or of the consequences of

the action.’’ (Citation omitted; internal quotation marks

omitted.) Markey v. Santangelo, supra, 195 Conn. 78.

Thus, ‘‘[a] wanton assault and battery is one that under

circumstances, evinces a reckless disregard of the con-

sequence of the assaultive act.’’ Carragher v. DiPace,

supra, 2012 WL 6743563, *5. ‘‘[Reckless] conduct tends

to take on the aspect of highly unreasonable conduct,

involving an extreme departure from ordinary care, in

a situation where a high degree of danger is apparent.’’

(Internal quotation marks omitted.) Northrup v. Wit-

kowski, 175 Conn. App. 223, 248, 167 A.3d 443, cert.

granted on other grounds, 327 Conn. 971, 173 A.3d

392 (2017).

In the present case, a fair and reasonable jury could

not conclude that a middle school soccer coach partici-

pating in a scrimmage with his players involved a situa-

tion of such a high degree of danger, such that the

decision to participate would constitute highly unrea-

sonable conduct. See id., 250. The possibility of being

hit in the face with a ball exists as a part of soccer,

regardless of who is participating, and, thus, Samu-

dosky’s participation could not be found to have created

an unreasonable risk of bodily harm. See Carragher v.

DiPace, supra, 2012 WL 6743563, *8. Finally, the fact

that Samudosky kicked the ball with a lot of power,

possibly too hard, cannot reasonably be characterized

as anything more than mere thoughtlessness or inadver-

tence, which, as a matter of law, is not reckless conduct.

See Northrup v. Witkowski, supra, 175 Conn. App. 248.

Accordingly, there is no genuine issue of material fact

that Samudosky did not commit a wanton and reckless

assault and battery.

Samudosky is therefore entitled to judgment as a

matter of law as to the assault and battery claim in

count one.

B

Intentional Infliction of Emotional Distress

‘‘In order for the plaintiff to prevail in a case for

liability under . . . [intentional infliction of emotional

distress], four elements must be established. It must be

shown: (1) that the actor intended to inflict emotional

distress or that he knew or should have known that

emotional distress was the likely result of his conduct;

(2) that the conduct was extreme and outrageous; (3)

that the defendant’s conduct was the cause of the plain-

tiff’s distress; and (4) that the emotional distress sus-

tained by the plaintiff was severe. . . . Whether a

defendant’s conduct is sufficient to satisfy the require-

ment that it be extreme and outrageous is initially a

question for the court to determine. . . . Only where

reasonable minds disagree does it become an issue for

the jury.’’ (Citations omitted; internal quotation marks

omitted.) Appleton v. Board of Education, 254 Conn.

205, 210, 757 A.2d 1059 (2000). ‘‘Liability for intentional

infliction of emotional distress requires conduct that

exceeds all bounds usually tolerated by decent society

. . . . Liability has been found only where the conduct

has been so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community. Generally, the case

is one in which the recitation of the facts to an average

member of the community would arouse his resentment

against the actor, and lead him to exclaim, Outrageous!

. . .’’ (Internal quotation marks omitted.) Geiger v.

Carey, Superior Court, judicial district of Litchfield,

Docket No. CV-XX-XXXXXXX-S (February 25, 2015)

(reprinted at 170 Conn. App. 462, 497, 154 A.3d 1119),

aff’d, 170 Conn. 459, 154 A.3d 1093 (2017).

‘‘[I]n assessing a claim for intentional infliction of

emotional distress, the court performs a gatekeeping

function. In this capacity, the role of the court is to

determine whether the allegations of a complaint, coun-

terclaim or cross complaint set forth behaviors that

a reasonable fact finder could find to be extreme or

outrageous. In exercising this responsibility, the court is

not [fact-finding], but rather it is making an assessment

whether, as a matter of law, the alleged behavior fits

the criteria required to establish a claim premised on

intentional infliction of emotional distress.’’ (Internal

quotation marks omitted.) Gagnon v. Housatonic Val-

ley Tourism District Commission, 92 Conn. App. 835,

847, 888 A.2d 104 (2006).

The defendants move for summary judgment as to

the third count of the complaint alleging intentional

infliction of emotional distress on the grounds that (1)

Samudosky’s conduct was not extreme and outrageous,

and (2) Angelina did not suffer severe emotional dis-

tress. The plaintiff contends that there is a genuine

issue of material fact as to whether his conduct was

extreme and outrageous.

In the present case, the plaintiff’s allegations do not,

as a matter of law, rise to the level of outrageousness

required to sustain a claim of intentional infliction of

emotional distress. A coach participating in a scrim-

mage with his players is not patently unreasonable, let

alone so atrocious as to go beyond all bounds usually

tolerated by a society. See Appleton v. Board of Educa-

tion, supra, 254 Conn. 211. Samudosky’s act of kicking

the ball, even if too hard given the size discrepancy

between him and his players, cannot be deemed so

extreme in degree as to render it intolerable. ‘‘The stan-

dard for extreme and outrageous behavior has histori-

cally been construed very strictly’’; Marquez v. Housing

Authority, Docket No. CV-XX-XXXXXXX-S, 2013 WL

6916760, *5 (Conn. Super. December 3, 2013) (Hon.

Alfred J. Jennings, Jr., judge trial referee); and it has

been said that ‘‘[t]his tort must be strictly policed to

avoid turning ordinary life and its insults and ignorant

behavior into an endless and uncontrollable pool for

litigation.’’ (Internal quotation marks omitted.) Brem-

mer-McLain v. New London, Docket No. CV-11-

5014142-S, 2012 WL 2477921, *12 (Conn. Super. June 1,

2012) (Devine, J.), aff’d, 143 Conn. App. 904, 69 A.3d

351 (2013). To deem the conduct alleged to be extreme

and outrageous, the standard would have to be con-

strued much more broadly than our courts, including

appellate courts, have done.

Similarly, the allegation regarding Samudosky evalu-

ating Angelina despite not being a medical professional

and allowing her to continue to play cannot be said to

be extreme and outrageous. This was not an exceptional

incident; as soccer is a contact sport, being hit with the

ball is a risk every time soccer is played. See Jaworski

v. Kiernan, supra, 241 Conn. 406–407. Additionally, it

was not unreasonable of Samudosky to determine that

Angelina was fine and okay to keep playing; although

she had a bloody nose, it lasted only about five to ten

minutes; when asked how she felt and if she thought

she could play, she told Samudosky that she had a

headache but thought she could play; she was able to

walk from the indoor gym to the field where practice

was finished; and she did not ask not to play. Finally,

mere errors in judgment do not, as a matter of law, rise

to the level of extreme and outrageous conduct. See

Appleton v. Board of Education, supra, 254 Conn. 210.

Samudosky is thus entitled to summary judgment on

this count on the ground that his conduct was not

extreme and outrageous.

Furthermore, the claim of intentional infliction of

emotional distress also fails because there is no genuine

issue of material fact that Angelina did not suffer severe

emotional distress. The distress necessary to sustain a

claim of intentional infliction of emotional distress has

been defined simply, but clearly, as ‘‘mental distress of a

very serious kind.’’ (Internal quotation marks omitted.)

Gillians v. Vivanco-Small, 128 Conn. App. 207, 212, 15

A.3d 1200, cert. denied, 301 Conn. 933, 23 A.3d 726

(2011). Our appellate courts, however, have never

adopted a bright-line test for determining what kinds

of mental distress are sufficiently serious to sustain a

claim of intentional infliction of emotional distress, but

our trial courts have consistently used the standard set

forth in the Restatement. See Civitella v. Pop Warner

Football, Superior Court, judicial district of Ansonia-

Milford, Docket No. CV-XX-XXXXXXX-S (September 5,

2012) (Matasavage, J.) (54 Conn. L. Rptr. 641, 643);

Stapleton v. Monro Muffler, Inc., Docket No. CV-98-

0580365-S, 2003 WL 462566, *5 (Conn. Super. February

3, 2003) (Sheldon, J.).

Comment (j) to the Restatement (Second) of Torts,

§ 46, provides in relevant part: ‘‘The law intervenes only

where the distress inflicted is so severe that no reason-

able [person] could be expected to endure it. The inten-

sity and the duration of the distress are factors to be

considered in determining its severity.’’ 1 Restatement

(Second), supra, § 46, comment (j), pp. 77–78. Emo-

tional distress is unlikely to be considered severe in

the absence of treatment, medical, psychological, or

otherwise. See, e.g., Civitella v. Pop Warner Football,

supra, 54 Conn. L. Rptr. 643–44; Stapleton v. Monro

Muffler, Inc., supra, 2003 WL 462566, *4; cf. Perez-Dick-

son v. Bridgeport, 304 Conn. 483, 529, 43 A.3d 69 (2012)

(‘‘[T]he only evidence of severe emotional distress that

the plaintiff presented with respect to this conduct is

that she became frightened and choked up upon being

told that her career might be in jeopardy. There was

no evidence that the plaintiff was in distress for an

extended period or that she sought medical treat-

ment.’’). Mere embarrassment, humiliation and hurt

feelings do not constitute severe emotional distress.

See Barry v. Posi-Seal International, Inc., 36 Conn.

App. 1, 20 n.17, 647 A.2d 1031 (1994), remanded for

further consideration, 235 Conn. 901, 664 A.2d 1124

(1995); Stapleton v. Monro Muffler, Inc., supra, *6

(‘‘common feelings and emotions, such as hurt feelings,

embarrassment and humiliation, are things we all expe-

rience in our daily lives, and thus things we must learn

to live with’’).

In the present case, the evidence submitted demon-

strates that Angelina did not suffer severe emotional

distress. Initially, it is noted that the consequences

described—missing school, having to repeat a grade,

not being able to participate with friends and family

because of headaches, or not being able to finish the

soccer season or try out for basketball the year the

incident took place—are a result of her concussion

rather than emotional distress. Nevertheless, Angelina

testified that she suffered emotional distress from hav-

ing to repeat the seventh grade, suffering embar-

rassment from being one year behind her friends and

older than the other students in her grade. She testified

that she does not like talking about her situation and

is uncomfortable with it. The plaintiff similarly attested

in her affidavit that Angelina has suffered embar-

rassment and humiliation at having to repeat the sev-

enth grade. Notably, Angelina testified that she has not

sought any treatment for her emotional distress and

does not plan to. Although this distress is arguably long-

term in the sense that she will continue to be older

than her classmates throughout the remainder of high

school, it cannot be said to be of the type that is so

intolerable or unbearable that no reasonable person

could be expected to endure. To the contrary,

Angelina’s embarrassment is nothing more than a

‘‘degree of transient and trivial emotional distress,

which is a part of the price of living among people.’’

(Internal quotation marks omitted.) Civitella v. Pop

Warner Football, supra, 54 Conn. L. Rptr. 644. Samu-

dosky is thus entitled to summary judgment on this

count on the ground that Angelina did not suffer severe

emotional distress.

C

Recklessness

‘‘Recklessness requires a conscious choice of a

course of action either with knowledge of the serious

danger to others involved in it or with knowledge of

facts which would disclose this danger to any reason-

able man, and the actor must recognize that his conduct

involves a risk substantially greater . . . than that

which is necessary to make his conduct negligent. . . .

More recently, we have described recklessness as a

state of consciousness with reference to the conse-

quences of one’s acts. . . . It is more than negligence,

more than gross negligence. . . . The state of mind

amounting to recklessness may be inferred from con-

duct. But, in order to infer it, there must be something

more than a failure to exercise a reasonable degree

of watchfulness to avoid danger to others or to take

reasonable precautions to avoid injury to them. . . .

Wanton misconduct is reckless misconduct. . . . It is

such conduct as indicates a reckless disregard of the

just rights or safety of others or of the consequences

of the action.’’ (Internal quotation marks omitted.) Doe

v. Boy Scouts of America Corp., 323 Conn. 303, 330,

147 A.3d 104 (2016). ‘‘Reckless conduct must be more

than any mere mistake resulting from inexperience,

excitement, or confusion, and more than mere thought-

lessness or inadvertence, or simply inattention . . . or

even an intentional omission to perform a statutory

duty . . . . [In sum, reckless] conduct tends to take

on the aspect of highly unreasonable conduct, involving

an extreme departure from ordinary care, in a situation

where a high degree of danger is apparent.’’ (Citation

omitted; internal quotation marks omitted.) Northrup

v. Witkowski, supra, 175 Conn. App. 248.

In count six, the plaintiff asserts a claim of reckless-

ness against all of the defendants for their alleged con-

duct relating to the incident and Angelina’s injury. The

defendants argue that the recklessness claim fails as a

matter of law and that their allegedly reckless conduct

did not cause Angelina’s injuries.

In the present case, the plaintiff has simply incorpo-

rated her allegations of negligence in count five into the

recklessness counts and then adds the legal conclusion

that the defendants wantonly, wilfully, or recklessly

failed to inform the plaintiff of Angelina’s injuries in

disregard for her safety, health and well-being. It has

been said that ‘‘[m]erely using the term ‘recklessness’

to describe conduct previously alleged as negligence is

insufficient as a matter of law.’’ Angiolillo v. Buck-

miller, 102 Conn. App. 697, 705, 927 A.2d 312, cert.

denied, 284 Conn. 927, 934 A.2d 243 (2007); see id.

(affirming summary judgment where plaintiffs’ ‘‘simply

incorporated their allegations of negligence and labeled

the conduct recklessness’’). Furthermore, the plaintiff’s

allegations, when viewed in light of the evidence on

the record, even when taken in a light most favorable

to her, cannot be characterized as rising above mere

negligence. The evidence does not demonstrate that the

incident of Angelina’s being hit with the ball involved

a situation of such a high degree of danger that allowing

Angelina to continue practice or failing to immediately

contact her parents constituted the sort of highly unrea-

sonable conduct or ‘‘wanton disregard that is the hall-

mark of reckless behavior.’’ Northrup v. Witkowski,

supra, 175 Conn. App. 250. On the basis of the evidence

submitted, the defendants’ conduct cannot reasonably

be characterized as anything more than mere thought-

lessness or inadvertence, which, as a matter of law,

is not reckless conduct. See id., 248. Accordingly, the

defendants are entitled to summary judgment as to the

plaintiff’s recklessness claim.3

CONCLUSION

For the foregoing reasons, the court grants the defen-

dants’ motion for summary judgment as to all counts

of the plaintiff’s complaint.

* Affirmed. Maselli v. Regional School District No. 10, 198 Conn. App.

, A.3d (2020).

1

Theresa Maselli will be referred to as the plaintiff and Angelina Maselli

as Angelina throughout this memorandum of decision.

2

‘‘The only rational conclusion is that the defendant intended . . . to

bring about a result, namely, some burning of that building or its contents,

that invaded the interests of the synagogue in a way that the law forbids.

. . . It is of no moment that he may not have specifically intended the Torah

scrolls to burn, or that he may not have specifically intended that the building

be substantially damaged by fire.’’ (Citations omitted.) American National

Fire Ins. Co. v. Schuss, supra, 221 Conn. 778–79.

3

Because the court finds that the negligence claims are barred by govern-

mental immunity, and that the plaintiff’s assault and battery, intentional

infliction of emotional distress and recklessness claims fail as a matter of

law, the court does not address alternative arguments in favor of sum-

mary judgment.