# Purzycki v. Town of Fairfield

> Connecticut Appellate Court · February 25, 1997 · 44 Conn. App. 359

URL: https://www.frixlaw.com/law-library/cases/7857221

## Case

- **Full name:** GARY PURZYCKI v. TOWN OF FAIRFIELD
- **Court:** Connecticut Appellate Court
- **Decided:** February 25, 1997
- **Citations:** 44 Conn. App. 359; 689 A.2d 504; 1997 Conn. App. LEXIS 59
- **Precedential status:** Published
- **Opinion:** Dissent by Heiman
- **Judges:** Heiman, Spear
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Purzycki v. Town of Fairfield, 244 Conn. 101 (1998).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7857221

## Opinion text

HEIMAN, J.,
dissenting. The majority concludes that the jury could not reasonably have found that the minor plaintiff was subjected to a risk of imminent harm. Accordingly, it affirms the trial court’s decision to grant the defendants’ motion to set aside the verdict and to render judgment notwithstanding the verdict. I believe that the result reached by the majority is incorrect, and, thus, I respectfully dissent.
Our Supreme Court has repeatedly held that the resolution of the question of the existence of imminent harm is a factual issue for the jury to determine. See Evon v. Andrews, 211 Conn. 501, 507 , 559 A.2d 1131 (1989); Shore v. Stonington, 187 Conn. 147, 153 , 444 A.2d 1379 (1982); Sestito v. Groton, 178 Conn. 520, 528-29 , 423 A.2d 165 (1979). “[T]he constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded [persons] passed upon by the jury and not by the court.” State v. Wooten, 227 Conn. 677, 696 , 631 A.2d 271 (1993). “ ‘Thus, the role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached *367 the verdict that it did.” Caciopoli v. Acampora, 30 Conn. App. 327, 332 , 620 A.2d 191 (1993).
Contrary to the majority, I believe that, on the basis of the evidence presented at trial, the jury could reasonably have found that Jason was subjected to a risk of imminent harm. At trial, the principal of the elementary school admitted that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries. Children on their way to recess are often especially excited and in a hurry to get out to play and are thus even more likely to run, to engage in horseplay and ultimately to be injured. At trial, the principal acknowledged that because of these natural tendencies of young children, his elementary schoolchildren are supervised for almost the entire time that they are on school grounds. The children are supervised while at recess, while eating lunch, and are even teacher escorted when traveling from classroom to classroom or from classroom to recess.
In the face of this, the principal admitted that when his elementary schoolchildren left the lunch room and traveled to recess, excited and in a hurry, they were not directly supervised as they were at other critical times. 1 “In considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their *368 conclusions correct.” (Internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 119 , 665 A.2d 95 (1995). Therefore, I conclude that here the issue of imminent harm presented an issue of fact as to which there was room for a reasonable difference of opinion among fair-minded persons, and thus the jury could have reasonably concluded that Jason was subjected to a risk of imminent harm.
Moreover, recent case law supports the jury’s conclusion that Jason was subjected to a risk of imminent harm. Contrary to the majority’s opinion, I believe that this case is controlled by Burns v. Board of Education, 228 Conn. 640, 646 , 638 A.2d 1 (1994), not Evon v. Andrews, supra, 211 Conn. 501 . In Evon , a decedent’s administratrix alleged that the city of Waterbury was negligent in failing to reasonably inspect a multifamily rental unit in which the decedent was living and, as a result of such negligence, failed to prevent the occurrence of a fire. In Evon , the Supreme Court concluded that, “[t]he class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of ‘identifiable persons.’ ” Evon v. Andrews, supra, 508 . In Burns , however, as here, the plaintiff fell “during school hours, while the child was compelled by statute to be on those school grounds.” Burns v. Board of Education, supra, 650 . Thus, the plaintiff in Bums, like the minor plaintiff here, “was one of a class of foreseeable victims” to whom the school principal and the board of education owed a duty of protection from dangers that may reasonably be anticipated. Id.
The majority concludes that this case is controlled by Evon , not Burns , because the accident here could have occurred at any time in the future, or not at all, and thus the danger in this case was not limited or temporary in duration. I disagree.
*369 In my opinion, the risk of injury at issue here is similar to the risk of injury that our Supreme Court found to constitute “imminent harm” in Burns . In Bums, icy conditions “in this particularly ‘treacherous’ area of the campus” existed for temporary periods of time every winter. Burns v. Board of Education, supra, 228 Conn. 649 . Here, the lack of supervision of the hallway between the lunch room and the outside playground occurred every school day during that particularly treacherous half hour when the young children were hurriedly and excitedly trying to get out to recess. Thus, the threat of injury here was just as “limited” and “temporary” as was the threat of injury in Bums. Further, the potential for harm from a fall on ice and the potential for harm from unsupervised second graders hurriedly and excitedly running out to recess are equally significant and foreseeable. See id.
The majority further distinguishes this case from Bums by concluding that in Burns , the risk of imminent harm was created by the icy condition alone, while here, the risk of harm was created by a combination of the lack of supervision, Jason’s own conduct and the conduct of another student, and thus did not rise to the level of exposure to imminent harm. I disagree.
In Bums, the icy condition alone did not create the risk of imminent harm. The plaintiff in Bums slipped and fell because (1) there was ice, (2) the head custodian failed to salt and sand that area of the campus, and (3) the student chose to walk in that particularly treacherous area of the school when the conditions were icy. Thus, both here and in Bums, the risk of imminent harm required a confluence of events.
Therefore, viewing the evidence in the light most favorable to the plaintiffs, I conclude that the jury reasonably could have found that the lack of supervision *370 subjected Jason to a risk of imminent harm. 2 I would reverse the judgment and remand this case with direction to deny the defendants’ motion to set aside the verdict and to render judgment on the jury verdict.
The principal testified that abutting the hallway at issue were classrooms in which teachers were teaching. The principal explained that the teachers in these classrooms were instructed to leave their classroom doors open in order to be able to be of assistance if there was a problem in the hallway. It seems clear, however, that a jury could reasonably find that teachers busy teaching in their own classrooms can hardly be considered to be adequately monitoring an adjacent hallway.
Inherent in the majority opinion is the implication that if we allowed the jury to find that the failure to supervise a hallway where young children hurriedly traveled from lunch to recess created a risk of imminent harm, we will have transferred the governance of elementary schools from the principal’s office to the courtroom and thereby crimped the exercise of official discretion beyond the limits desirable in our society. I disagree.
As our Supreme Court reiterated in Bums, our case law has consistently recognized that, “children require special consideration when dangerous conditions are involved.” Burns v. Board of Education, supra, 228 Conn. 650 . Moreover, “during school hours on school days, when parents are statutorily compelled to relinquish protective custody of their children to a school board and its employees, the superintendent has the duty to protect the pupils in the board’s custody from dangers that may reasonably be anticipated.” Id., 649 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7857221. Public record. Not legal advice.