Special Ed Connection Case Report33 IDELR 270                                                      Later that day, the stu...
Special Ed Connection Case Reportinformed that morning that the same assailant had          at him, called him racial epit...
Special Ed Connection Case Reportwho were present about Scotts threatening behavior         has no permanent physical disa...
Special Ed Connection Case ReportBurns explains, "school children attending public         Summa breached her duty to use ...
Special Ed Connection Case ReportRobert or had learned of facts that would lead a           tort action in circumstances o...
Special Ed Connection Case Reportdetermines that the appropriate amount                 ofnoneconomic damages in this case...
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|FP 58| Kendall v west haven department of education

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|FP 58| Kendall v west haven department of education

  1. 1. Special Ed Connection Case Report33 IDELR 270 Later that day, the student victim was attacked33 LRP 6342 by the other student in the cafeteria. The student victims head hit the floor, knocking out his two frontRobert J. Kendall, III, et al., Plaintiff v. teeth and breaking his jaw on both sides.West Haven Department of Education, et al., Defendants HELD: For the parents. Connecticut Superior Court The Superior Court of Connecticut found the assistant principal negligent for failing to take action November 17, 2000 to protect the student. At the same time, however, itRelated Index Numbers dismissed the claims brought against the principal and355.045 Personnel, Qualified Immunity a teacher. The court stated that students are theJudge / Administrative Officer intended beneficiaries of "certain duties of care" from school officials during the school day. One of thoseJon C. Blue, Judge of the Superior Court duties is to protect students "from dangers that mayCase Summary reasonably be anticipated." The Superior Court of Connecticut awarded Here, the assistant principal had reason tomore than $67,000 to a special education student who anticipate the dangerous actions that ensued. She waswas attacked by another special education student, informed of the previous attacks and, therefore, hadbased on compelling evidence that the assistant an affirmative duty to take action to prevent furtherprincipal had reason to know of the potential harm to attacks. The court noted, however, that "the evidencethe victim. The assistant principal was informed of unambiguously establishes that she did nothing."the previous attacks and, therefore, had an affirmative Given the egregious nature of the assistantduty to take action to prevent further attacks. The principals inaction, she was not shielded by thecourt noted, however, that "the evidence doctrine of governmental immunity. One of theunambiguously establishes that she did nothing." exceptions to governmental immunity applied underGiven the egregious nature of the assistant principals these circumstances. That is, she knew of "likelyinaction, she was not shielded by the doctrine of imminent harm to an identifiable person," and wasgovernmental immunity. One of the exceptions to therefore liable for negligence. The court awarded thegovernmental immunity applied under these parents more than $67,000 in damages.circumstances. That is, she knew of "likely imminentharm to an identifiable person," and was therefore Full Textliable for negligence. Appearances: A special education student suffered fromfrequent harassment and bullying from another Memorandum of Decisionstudent. The student eventually told his parents about This negligence case, which has been tried to thethe harassment who told him to inform school Court, presents a variation of Purzycki v. Town ofofficials. The student told the assistant principal of the Fairfield, 244 Conn. 101, 708 A.2d 937 (1998).other students actions, which included racial epithets, Purzycki holds that a child who has been tripped byspitting and pushing. The assistant principal stated another student in a school hallway comes within thethat she would take care of the matter, but she took no "imminent harm" exception to the doctrine ofaction. Nor did she inform other school officials of governmental immunity for discretionary actsthe prior incident and left the premises for the day performed by municipal employees. This caseshortly after meeting with the student. involves a child assaulted by another student in a school cafeteria after a school administrator had beenCopyright # 2007 LRP Publications 1
  2. 2. Special Ed Connection Case Reportinformed that morning that the same assailant had at him, called him racial epithets, and spit at him. Inattacked the same victim on the previous day. For the spite of the fact that all of this tormenting occurred onreasons that follow, the school administrator had a school property, the schools teachers andduty to use reasonable care to protect the child in administrators were completely oblivious to Scottsquestion and breached that duty. behavior. This action was commenced by service of One of these episodes occurred on June 14,process in March 1997. The plaintiffs are Robert 1995. That evening, Robert---who had not previouslyJames Kendall, III ("Robert"), a minor, and his responded to Scotts tormenting---told his parentsparents, Robert James Kendall, Jr. and Josie Bell what had happened. His parents told him to tell theKendall. The present defendants (some former schools administrator the next morning.defendants being no longer in the case) are the West On the morning of June 15, 2000, shortly afterHaven Board of Education (misdescribed in the Robert had arrived at school, he told Summa thatsummons and case caption as the "West Haven Scott had, on the previous day, pushed him, spit onDepartment of Education"); Sharon Chain, who was, him, and called him "monkey" and "nigger." Summaat the time in question, a teacher at the May V. said that she would take care of it.Carrigan Middle School in West Haven (the " A few minutes later, Roberts mother, who hadschool"); Frank J. Raffone ("Raffone"), who was the been parking her car while Robert spoke to Summa,principal of the school; and Jane Summa Raffone came into the school and spoke to Summa herself.("Summa"), who was the assistant principal. She told Summa that Scott had spit on Robert and The plaintiffs second revised complaint consists asked if she could take Robert out of school so that heof four counts. Count One, which inaccurately wouldnt get hurt. (It was about three days before thedescribes Raffone as the Superintendent of Schools, end of the school year.) Summa told Roberts motheralleges that Robert was injured as a result of Raffones that she disagreed, and that it wouldnt be necessary.negligence. Count Two, which inaccurately describes In spite of her assurances to both Robert and hisSumma as the principal of the school, alleges that mother, Summa did absolutely nothing in response toRobert was injured as a result of Summas negligence. the information she had just received. Summa insteadCount Three alleges that Robert was injured as a left the school within a few minutes for an educationresult of Chains negligent supervision. Count Four conference in Hamden and did not return that day.alleges that the Board of Education is liable to the The assault complained of in this case occurredplaintiffs in accordance with Conn. Gen. Stat. # in the school cafeteria at lunchtime. The cafeteria was7-465(a). a large room containing three teachers who had drawn The case was tried to the Court on October 11 lunchroom duty and about three dozen students. Theand 12, 2000. Following posttrial briefing, the case teacher-student ratio happened to be higher than usualwas argued on November 16, 2000. that day because a number of students were on a field The evidence establishes the following facts. In trip but---significantly---the deployment of theJune 1995, Robert was an eleven-year-old student in teachers was the same as it usually was. One teachersixth grade. He was enrolled in a special education monitored the lunch line, a second teacher (Chain)class in the school. Robert is an African American of stood by an exit to prevent unauthorized departures,slight build. Another sixth-grade special education and a third teacher was selling candy. Summas dutiesstudent in the same class, Scott Tucker ("Scott"), was included a supervisory role with respect to thewhite. Over a period of at least a few days in June cafeteria, but (as mentioned) she was no longer on the1995, Scott repeatedly tormented Robert because of school grounds, and she had told none of the teachersRoberts race. Scott pushed Robert in the halls, cursedCopyright # 2007 LRP Publications 2
  3. 3. Special Ed Connection Case Reportwho were present about Scotts threatening behavior has no permanent physical disabilities caused by thetoward Robert. Consequently, no change had been assault, with the significant exception of his two frontmade to the usual routine. The teachers were teeth, which will eventually have to be replaced. Thedeployed as just described, and the students were to credible evidence also establishes that Robert sufferedsit at tables near the entrance until their table was some short-term emotional trauma as a result of thecalled to the lunch line. assault, including nightmares and fear of other Within seconds of Roberts entry into the persons. Robert has subsequently been treated by acafeteria, Scott assaulted him. This assault was psychologist, but unhappily no psychological recordsserious. Scott threw cookies at Robert and cursed him. were introduced into evidence. On this state of theRobert tried to walk away. Scott came up behind him, evidence, the Court cannot find that Robert hasput Roberts head in a wrestling hold, and tripped his suffered any permanent psychological or psychiatricfeet. Robert fell to the floor face first like a toppled trauma as a result of the assault.tree. When he hit the ground his two front teeth were In determining the liability of the variousknocked out of his head, and his jaw was broken on individual defendants, it will be helpful to keep inboth sides. All of this happened in seconds. The mind the analytical framework of Purzycki v. Town ofteachers in the cafeteria were completely oblivious as Fairfield, supra. Purzycki explains that, "Althoughto what had happened until Chain saw Scott trying to municipalities are generally immune from liability inescape. tort, municipal employees historically were personally Robert suffered serious injuries as a result of the liable for their own tortious conduct. . . . The doctrinecafeteria assault. As an immediate consequence of the of governmental immunity has provided someassault, he suffered great pain and fear. As mentioned, exceptions to the general rule of tort liability fortwo front teeth were knocked from his head, and his municipal employees." 244 Conn. at 107. (Internaljaw was fractured on both sides. The teeth were quotation marks and citations omitted.) Because ofretrieved, and a dentist subsequently reimplanted this framework, it will be helpful to determinethem. While the teeth are currently doing well, the whether any of the individual defendants here---all ofdentist credibly testified that, over the course of time, whom are municipal employees---would be liable toit is likely that Roberts body will treat the teeth as a the plaintiffs under the common law of negligence.foreign object and reject them. Roberts existing As will be seen, this question must be answereddental bills are $1,330. The (additional) cost of affirmatively as to Summa and negatively as toreplacement teeth will be at least $4,000. Raffone and Chain. It will then be necessary to determine whether Summa is protected by the To repair Roberts broken jaw, his teeth had to be doctrine of governmental immunity.wired shut for six weeks. This required surgery undergeneral anesthesia. During this period of recuperation, It will be helpful to consider Summas liabilityRobert was in much physical discomfort and could first, for the case against her is by far the strongest ofnourish himself only by sipping Ensure through a the cases against the three individual defendants. Thestraw. He lost ten pounds during this period in spite of question of whether she had a duty of care towardthe fact that he was a slight child to begin with. Robert is a matter of law for the Court to determine.Fortunately, his jaw has successfully healed. There is "A duty to act with reasonable care to prevent harm tono medical evidence of any permanent impairment. a plaintiff which, if violated, may give rise to tortHis surgical bills total $2,020. liability is based on a special relationship between the plaintiff and the defendant."Burns v. Board of As mentioned, Robert suffered great fear and Education, 228 Conn. 640, 646, 638 A.2d 1 (1994).pain following the assault in question. The medical (Internal quotation marks and citations omitted.) Asevidence submitted to the Court establishes that heCopyright # 2007 LRP Publications 3
  4. 4. Special Ed Connection Case ReportBurns explains, "school children attending public Summa breached her duty to use reasonable care toschools during school hours are intended to be the protect Robert and because that breach was abeneficiaries of certain duties of care."Id. at 648. proximate cause of the plaintiffs injuries, SummasMoreover, "the presence of the plaintiff child on the common law liability to the plaintiffs is established.school premises where he was injured was not The evidence does not establish the liability ofvoluntary. . . . He was statutorily compelled to attend Raffone and Chain. While Raffone and Chain, likeschool."Id. at 649. Under these circumstances, Summa, had a duty to protect Robert from dangersSumma, whose general supervisory authority that reasonably could have been anticipated, theextended to the school cafeteria, had the duty to evidence shows that neither of them breached thisprotect the plaintiff student "from dangers that may duty.reasonably be anticipated."Id. "As a matter of policy, Chain was in the cafeteria when the assaultthis conclusion comports with our case law that has occurred but was positioned sufficiently far awaytraditionally recognized that children require special from the location of the assault that she could haveconsideration when dangerous conditions are done nothing to prevent it. Of course, given someinvolved."Id. at 650. advance warning, Chain could have prevented the Given the Courts findings that Summa had been assault, but the responsibility for her lack of advancedinformed by both Robert and his mother on the warning is not hers but Summas. The evidence showsmorning of June 14, 1995, that Robert had been that Chain did not become aware of Roberts plightphysically attacked and racially vilified by Scott on until several minutes after the assault because she wasthe previous day, Summa had a legal duty to Robert busy chasing Scott, who was trying to escape. Thereto protect him from further attacks by Scott. is no evidence, however, that Robert suffered anyUnhappily, although Summa assured both Robert and harm as a result of any post-assault delay in coming tohis mother that she would take care of the problem, his aid. On the contrary, the evidence establishes thatthe evidence unambiguously establishes that she did all of Roberts injuries were caused by his initial fallnothing. She instead left the school grounds for the to the floor. There is no evidence that he would haveday without investigating the problem or telling benefitted from any post-assault attention that wasanyone about it. Because of her inaction, the teachers speedier than that which he actually received. Chainassigned to the cafeteria had no warning as to the did not fail to exercise due care under theproblem. It would have been easy enough for Summa circumstances.to tell the teachers assigned to the cafeteria to watch Although Burns v. Board of Education, supra,out for a problem between Scott and Robert or to keep holds that "the superintendent of schools bears thethe two away from each other, but Summa did responsibility for failing to act to prevent the risk ofnothing. The evidence also establishes that Summa imminent harm to school children as an identifiablewas well aware of the usual deployment of teachers in class of beneficiaries of his statutory duty of care,"the cafeteria. This deployment was manifestly 228 Conn. at 649, the evidence clearly fails toinadequate to prevent a sudden attack by one student establish the plaintiffs allegation that Raffone was theupon another near the entrance to the cafeteria. Under Superintendent of Schools. He was, instead, thethese circumstances, Summa failed to use reasonable principal of the school where the assault in questioncare to protect Robert from Scott. Her failure to use occurred. In that capacity, he could undoubtedly bereasonable care was a proximate cause of Roberts held liable for injury for negligence if he could haveinjuries. If Summa had informed the teachers in the reasonably foreseen that his conduct---orcafeteria of the problem, any one of those teachers inaction---would result in injury. If Raffone hadcould easily have prevented the assault. Because acquired either actual knowledge of Scotts abuse ofCopyright # 2007 LRP Publications 4
  5. 5. Special Ed Connection Case ReportRobert or had learned of facts that would lead a tort action in circumstances of likely imminent harmreasonable person to conclude that Robert had been to an identifiable person."Id.abused, he would be subject to liability if his level of This case presents a classic example of "likelysupervision had been unreasonable and had been a imminent harm to an identifiable person." Theproximate cause of Roberts injuries. See Marquay v. evidence leaves no doubt that Robert was specificallyEno, 139 N.H. 708, 662 A.2d 272, 279 (N.H. 1995). identified as the victim of Scotts physical attacks andBut the evidence here establishes no such basis of racial harassment. As such, he was infinitely moreliability. The evidence instead establishes that "identifiable" than the schoolchild who slipped andRaffone knew nothing of the trouble between Scott fell due to icy conditions in Burns and/or theand Robert until long after the assault in question had schoolchild who was tripped in the hall in Purzycki. Ifoccurred. There is no evidence that Raffone knew of the schoolchildren in Burns and Purzcyki wereany facts that would have led a reasonable person to "identifiable," as the Supreme Court later held themconclude that Robert had been abused. There is, in to be, Robert was obviously "identifiable" as well.addition, no credible evidence that Raffones training The "imminent harm" prong of the test is also evenof the teachers or administrators at the school was more readily satisfied here than it was in Burns andinadequate. There is, consequently, no evidentiary Purzcyki. Here the same victim (Robert) had beenbasis for a finding that Raffone failed to exercise due attacked by the same assailant (Scott) on the previouscare under the circumstances. day. Given the information presented to her, Summa Count Four of the second revised complaint is had ample reason to foresee the danger to Robert thatdirected against the Board of Education. The Board, could---and did---occur on June 15, 1995.however, is sued only pursuant to Conn. Gen. Stat. # Under these circumstances, Summa is liable to7-465(a). At argument, the attorney for all of the the plaintiffs in negligence and is not protected by thedefendants represented that the Town of West Haven doctrine of governmental immunity.will pay any sums which any individual defendant The issue of damages must now be considered.becomes obligated to pay in this action. Under these The credible evidence, described above, establishescircumstances, all parties agree that no judgment that the plaintiffs economic damages total $7,350.should enter on Count Four. This amount includes a dental bill of $1,330, a future For the reasons discussed above, Summa is the dental bill of $4,000 for the replacement of Robertsonly individual defendant who would be liable to the front teeth, and a surgical bill of $2,020.plaintiffs under the common law of negligence. The The plaintiffs noneconomic damages mustnext question that must be addressed is whether include fair, just, and reasonable compensation forSumma is protected by the doctrine of governmental Roberts immediate pain and terror involving theimmunity. The determination of whether qualified assault itself, Roberts pain and suffering surroundingimmunity applies is a question of law for the Court. the jaw surgery and dental repair that he underwentPurzycki v. Town of Fairfield, supra, 244 Conn. at shortly after the assault, Roberts discomfort and107. inconvenience over the six week period in which his Any duty owed by Summa to Robert was jaw was wired shut, the emotional trauma that Robertdiscretionary, not ministerial in nature. "Therefore, in has suffered as a result of the assault, and theorder to prevail, the plaintiffs claim must fall within probable pain and discomfort that Robert willone of the recognized exceptions to qualified experience in the future when his body rejects his twoimmunity for discretionary acts."Purzcyki v. Town of reimplanted teeth and those teeth are dentallyFairfield, supra, 244 Conn. at 108. The only such replaced. The calculation of these noneconomicexception relevant here "is the exception permitting a damages is necessarily judgmental. The CourtCopyright # 2007 LRP Publications 5
  6. 6. Special Ed Connection Case Reportdetermines that the appropriate amount ofnoneconomic damages in this case is $60,000. Judgment shall consequently enter as follows. On Count One (directed at Raffone), judgmentshall enter in favor of the defendant. On Count Two (directed at Summa), judgmentshall enter in favor of the plaintiffs against thedefendant. Damages are awarded as follows:Economic damages---$7,350; noneconomicdamages---$60,000; total damages---$67,350. On Count Three (directed against Chain),judgment shall enter in favor of the defendant. Forreasons discussed above, no judgment shall enter onCount Four.#--#Copyright # 2007 LRP Publications 6

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