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STRYCHARZ v. CADY—DISSENT
EVELEIGH, J., concurring and dissenting. I agree
with the majority that ‘‘the trial court improperly
granted the motion for summary judgment as to [the
defendants Dale J. McCubrey] and [Ross] Sward with
respect to the . . . claim that they breached their min-
isterial duty to assign school staff to supervise students
during school hours.’’ I further agree with the majority
that, with regard to the identifiable person-imminent
harm exception to the doctrine of governmental immu-
nity, the named plaintiff, Joseph Strycharz,1 ‘‘remained
a member of the identifiable class of foreseeable victims
to the extent that the defendants2 had a duty to super-
vise him while under their custody and control.’’ (Foot-
note added.) I respectfully disagree, however, with the
majority’s conclusion that the defendants are entitled
to summary judgment on the claims relating to their
discretionary acts ‘‘because there is insufficient evi-
dence in the record from which a jury reasonably could
conclude that it was apparent to the defendants that
there was a risk of imminent harm because students
arriving by bus were crossing Norwich Avenue before
the start of the school day.’’ In my view, the circum-
stances existing in this case present a classic question
of fact for the jury. Furthermore, since the trial court
used a standard that we no longer employ and relied
upon cases that we have now disavowed, at the very
least, I would remand the present case for another hear-
ing on the motion for summary judgment to determine
whether the identifiable person-imminent harm excep-
tion to the doctrine of governmental immunity
should apply.3
I disagree, in particular, with the majority’s represen-
tation that this case should not be remanded for a new
hearing on the motion for summary judgment because
its ‘‘decision . . . does not rest on the plaintiff’s failure
to satisfy the imminency prong of the identifiable per-
son-imminent harm exception but, rather, on his failure
to satisfy the apparentness prong of the exception,
the requirements of which have not changed since the
commencement of this action.’’ (Emphasis in original.)
See footnote 36 of the majority opinion. First, in grant-
ing the defendants’ motion for summary judgment in
the present case, the trial court specifically concluded
that the plaintiff had not established an imminent harm
and did not focus on the apparentness prong. Specifi-
cally, the trial court concluded that ‘‘the risk of an
accident at the subject intersection in the present case
may have been substantial, but it was ongoing and con-
tinuous, rather than imminent and discrete. An injury
at the subject intersection could have occurred at any
time or not at all.’’ Second, in Haynes v. Middletown,
314 Conn. 303, 322–23, 101 A.3d 249 (2014), which was
decided after the trial court granted summary judgment
in the present case, we clarified that ‘‘the proper stan-
dard 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.’’ Accord-
ingly, I would conclude that, under Haynes, appar-
entness and imminency are inextricably linked. Third,
in Edgerton v. Clinton, 311 Conn. 217, 238–39, 86 A.3d
437 (2014), which was also decided after the trial court
granted the motion for summary judgment in the pres-
ent case and is cited by the majority, we clarified the
apparentness standard. Specifically, in Edgerton, we
explained that the question is whether the government
official ‘‘was or should have been aware that her acts
or omissions likely would have subjected [the plaintiff]
to imminent harm.’’ Id., 239. Therefore, on the basis of
the trial court’s decision and the changes in the law
after the decision in the present case, I would conclude
that, at a minimum, this case should be remanded to
the trial court for a new hearing on the motion for
summary judgment that would provide the parties the
opportunity to present evidence in light of the clarified
standard for imminent harm.
The majority places the burden of proof on the plain-
tiff in the present case. Specifically, the majority
explains that ‘‘[t]he issue in this case is whether there
is sufficient evidence for a jury reasonably to conclude
that the school was aware that students were crossing
Norwich Avenue in violation of school policy after
getting off the bus on school property and before the
start of the school day.’’ (Emphasis in original.) I dis-
agree with that understanding of the plaintiff’s burden
at the summary judgment stage. It is well established
that ‘‘[i]n seeking summary judgment, it is the movant
who has the burden of showing the nonexistence of
any issue of fact. The courts are in entire agreement
that the moving party for summary judgment has the
burden of showing the absence of any genuine issue
as to all the material facts, which, under applicable
principles of substantive law, entitle him to a judgment
as a matter of law. The courts hold the movant to a
strict standard. To satisfy his burden the movant must
make a showing 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. . . . As the burden
of proof is on the movant, the evidence must be viewed
in the light most favorable to the opponent. . . . When
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation to submit documents establishing the existence
of such an issue.’’ (Internal quotation marks omitted.)
State Farm Fire & Casualty Co. v. Tully, 322 Conn.
566, 573, 142 A.3d 1079 (2016).
In the present case, the majority concludes that ‘‘the
plaintiff does not identify any facts in the record that
would have made it apparent to the defendants that
students arriving by bus were crossing Norwich Avenue
before the start of school.’’ Although the majority
acknowledges that the plaintiff presented evidence by
way of an affidavit stating that he crossed Norwich
Avenue every day after getting off the bus and that many
other students did the same, and deposition testimony
from another student, Alexander Lily, stating that cross-
ing the street before the start of school was ‘‘a normal
thing’’ to do, the majority states this evidence is ‘‘insuffi-
cient to create a genuine issue of material fact with
respect to this issue.’’ I disagree. The majority’s analysis
places the burden on the plaintiff and does not view
the evidence in the light most favorable to the opponent.
In the present case, the majority does not hold the
movant to a ‘‘strict standard,’’ and does not require the
movant to ‘‘make a showing that it is quite clear what
the truth is . . . .’’ (Internal quotation marks omitted.)
State Farm Fire & Casualty Co. v. Tully, supra, 573.
To the contrary, the majority seems to hold the plaintiff
to a strict standard and require him to make a showing
of what the truth is in order to avoid summary judgment.
As I explained previously in this opinion, Haynes v.
Middletown, supra, 314 Conn. 303, established a new
standard for establishing identifiable person-imminent
harm exception to the doctrine of governmental immu-
nity. In Haynes, we explained that ‘‘the 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.’’ Id., 322–
23. In doing so, we explicitly overruled Burns v. Board
of Education, 228 Conn. 640, 638 A.2d 1 (1994), and
Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937
(1998), ‘‘to the extent that they adopted a different stan-
dard.’’ Haynes v. Middletown, supra, 323.
The plaintiff in Haynes was a high school student
who had engaged in horseplay in the boys’ locker room,
in violation of a school rule, during the five minute
interval between classes when the locker rooms were
open so that students could change their clothes before
or after gym class. Id., 308 and n.3. He suffered a cut
on his arm when he was pushed against the jagged edge
of a broken locker that had been in that condition for
seven months. Id., 307–308. To establish the imminent
harm exception, the plaintiff relied on evidence that the
locker had been broken for seven months and school
officials were aware that horseplay in the locker room
was an ongoing problem. Id., 325. Applying the newly
developed test to the facts of Haynes, we reasoned as
follows: ‘‘Although this evidence is far from compelling,
we are unable to conclude that no reasonable juror
could find that it was apparent to school officials that,
in combination, the ongoing problem of horseplay in
the locker room and the presence of the broken locker
were so likely to cause an injury to a student that the
officials had a clear and unequivocal duty to act immedi-
ately to prevent the harm either by supervising the
students while they were in the locker room to prevent
horseplay or by fixing the broken locker.’’ Id., 325.
Although we stated that the evidence was thin, and
there was no evidence that school officials were aware
of the broken locker, we concluded that the case had
to be remanded so that a jury could determine whether
the plaintiff had established the imminent harm excep-
tion. Id., 307. In other words, we concluded in Haynes
that the issue of whether the plaintiff had met its burden
of establishing the identifiable person-imminent harm
exception could not be decided as a matter of law on
the basis of the facts contained within the record.
In light of our reasoning in Haynes, I would similarly
conclude that summary judgment was not proper in the
present case, and that a jury must determine whether
the plaintiff had established the identifiable person-
imminent harm exception. Indeed, unlike in Haynes,
in the present case the evidence established that school
officials knew of the risk to student safety posed by the
busy intersection. Specifically, McCubrey, the school’s
assistant principal, testified that there was a risk to
student safety in the area of Norwich Avenue where it
intersects with the entrance of the school. He testified
that ‘‘sometimes the traffic on Norwich Avenue would
be to the extent that we would be concerned about
student safety crossing that street.’’ The evidence also
established that the school had a policy requiring that
two staff members be assigned to the area every morn-
ing in order to ensure that students would go directly
into school from the bus. The evidence presented also
created a genuine issue of material fact as to whether
on the morning that the plaintiff was injured, there were
any staff members performing this duty. Accordingly,
I would conclude that it is proper for the jury to deter-
mine whether it was so apparent to school officials that
the lack of supervision posed a risk of imminent harm
to the students.
In the present case, as in Haynes, the trial court
determined that, as a matter of law, the plaintiff could
not satisfy the requirements for the identifiable person-
imminent harm exception because the dangerous condi-
tion was not temporary, and the risk of getting hit by
a car was the sort of harm that could occur at anytime.
In Haynes, we reversed the decision of the trial court
granting summary judgment to the municipal defen-
dant. Haynes v. Middletown, supra, 314 Conn. 307. I
concurred in the result in Haynes, but suggested that
the test should be whether the harm ‘‘was, or should
have been, apparent to the municipal defendant that
the dangerous condition was so likely to cause harm
in the near future that the defendant had a clear and
unequivocal duty to act to prevent the harm.’’ Id., 338.
The majority responded that ‘‘[b]ecause the question
of whether the standard is subjective or objective is
not before us, we express no opinion on it.’’ Id., 323
n.15. Therefore, the proper standard to be applied in
this case was expressed in Edgerton v. Clinton, supra,
311 Conn. 217. In Edgerton, we recognized that ‘‘we
have described the apparentness requirement as ‘would
have made it apparent.’ We take this opportunity to
clarify that the test is an objective one. We do not ask
whether the government agent actually knew that harm
was imminent but, rather, whether the circumstances
would have made it apparent to a reasonable govern-
ment agent that harm was imminent.’’ Id., 231 n.14. As
we ultimately decided in Haynes, however, the question
of whether the defendants had a clear and unequivocal
duty to act, in my view, is best left for a jury. Applying
the objective standard test expressed in Edgerton to
the facts in the present case, I would conclude that the
trial court improperly granted summary judgment in
favor of the defendants.
The defendants knew about the dangerous intersec-
tion and the need to protect students from its hazards.
Specifically, the defendants knew that the intersection
of the school driveway and Norwich Avenue, immedi-
ately in front of the school, subjected students to the
risk of being injured. Norwich Avenue is a state highway
with a speed limit of forty miles per hour in front of
the school. Despite the posted speed limit, vehicles
passing in front of the school regularly traveled at
speeds of approximately fifty miles per hour. Each
morning, 1000 students arrived for school. Some of
these students arrived on buses, some were driven by
their parents, some drove themselves, and others
arrived on foot. Students who walked to school used the
crosswalk at the intersection to cross Norwich Avenue.
There was no crossing guard or traffic agent at that
intersection. On July 23, 2007, Karen A. Loiselle, the
superintendent of schools of the town of Colchester,
went to the municipal police commission and said that
there was an immediate need for coverage at the inter-
section. Three weeks later, the Board of Education of
the Town of Colchester voted to hire a crossing traffic
agent, but the actual hiring did not take place until after
the plaintiff was injured.
The school had a student supervision program. Staff
members were assigned to bus duty where they were
responsible for making sure that students who arrived
by bus entered the school building immediately and did
not leave school grounds. The purpose of the rule was
student safety. The plaintiff’s affidavit indicates that
school staff members were never at the bus port and
were not present on the day of the accident. The undis-
puted evidence shows that no one ever directed the
plaintiff into school, and no one ever attempted to stop
him from walking through school grounds or from
crossing Norwich Avenue.
On the basis of the foregoing facts, I would conclude
that the trial court should not have granted the defen-
dants’ motion for summary judgment on the ground
that no reasonable juror could have found that the plain-
tiff had established the identifiable person-imminent
harm exception to governmental immunity. See Haynes
v. Middletown, supra, 314 Conn. 326 (‘‘we conclude that
the Appellate Court improperly upheld the ruling of the
trial court granting the defendant’s motion to set aside
the verdict in favor of the plaintiffs and to render judg-
ment in favor of the defendant on the ground that no
reasonable juror could have found that the plaintiffs had
established the imminent harm to identifiable persons
exception to governmental immunity’’). Specifically, I
would conclude that a reasonable juror could determine
that, if the school failed to follow its own policy of
providing supervision at the bus port, despite being
aware of the danger posed by the busy intersection,
that the plaintiff established sufficient facts to satisfy
the identifiable person-imminent harm exception to
governmental immunity. See Hurley v. Heart Physi-
cians, P.C., 278 Conn. 305, 323–24, 898 A.2d 777 (2006)
(‘‘we conclude that whether [the] actions [of the defen-
dant’s agent] were in derogation of the warnings in the
technical manual was an issue of material fact sufficient
to defeat the defendant’s motion for summary
judgment’’).
I would conclude, as we did in Haynes, that the
determination of whether the facts satisfy the require-
ments of the identifiable person-imminent harm excep-
tion is an issue for the jury. Indeed, I see little difference
between the lack of supervision in the locker room in
Haynes, and the alleged lack of supervision in the bus
port at the school in the present case. Both issues
involve a question of child safety. This case may even
be stronger than Haynes because, in the present case,
there was an established policy requiring the presence
of two staff members in the morning to protect the
students, unlike the case in Haynes wherein there was
no policy requiring supervision of the students in the
locker room. See Haynes v. Middletown, supra, 314
Conn. 309. Both cases involve high school students who
were engaged in activities that violate the rules of the
school. In Haynes, the jury took the plaintiff’s actions
into account and reduced the verdict. See id. The other
difference between the two cases is that, in the present
case, the actual injury occurred just off of the school
property. The allegation of imminent harm, however,
occurred through the lack of supervision while the
plaintiff was on school property. In light of these facts,
I agree with the majority that we should not endorse a
rule stating that there is no liability because the accident
occurred off of school property.
As I explained previously in this concurring and dis-
senting opinion, I agree with the majority’s conclusion,
contrary to the trial court, that the plaintiff ‘‘remained
a member of the identifiable class of foreseeable victims
to the extent that the defendants had a duty to supervise
him while under their custody and control.’’ Accord-
ingly, the defendants owed him a duty of care to protect
him from imminent harm. See Haynes v. Middletown,
supra, 314 Conn. 322–23. This duty to supervise students
is supported by the legislative history of General Stat-
utes § 52-557n. See Elliott v. Waterbury, 245 Conn. 385,
399, 715 A.2d 27 (1998) (‘‘[the] rejection of the notion
of immunity for teachers and their municipal employers
when their negligent supervision allowed students to
harm themselves or each other is one of the few clear
manifestations of legislative intent that emerges from
the murky legislative history of the municipal liability
section of the Tort Reform Act of 1986’’).
Additionally, in the present case, the defendants
undertook the duty to supervise students when they
arrived at school on school buses. Specifically, Jeffry
P. Mathieu, the school’s principal, was required to pro-
vide for the supervision of students in school hallways
and on school grounds under the school’s supervision
program. The supervision program required two staff
members to serve on bus duty each morning. These staff
members were provided written and oral instructions
informing them of their supervisory duties. In particu-
lar, staff members were required to occupy visible posi-
tions at two entrances located near the bus port and
enforce all school rules, including the rule that students
had to immediately enter the school building when they
arrived on buses and could not leave school grounds.
The school’s administrators periodically walked the
school grounds to ensure that staff members were at
their posts and performing their duties, and Mathieu
made inquiries to ensure that student supervision was
performed according to plan. The plaintiff claims that
if staff members had performed their duties, he would
have been directed safely inside the school building
on the morning in question. Instead, he walked across
Norwich Avenue and sustained injuries as the result of
being struck by a car. In my view, pursuant to Haynes,
a genuine issue of material fact existed as to whether
a jury reasonably could have inferred from the evidence
that the dangerous traffic condition was apparent to
the defendants and that, in the absence of supervision,
a risk of imminent harm was posed to the students
arriving on the bus that morning.
I respectfully disagree with the majority’s conclusion
that, as a matter of law, the harm to the plaintiff in the
present case was not imminent because ‘‘the plaintiff
does not identify any facts in the record that would
have made it apparent to the defendants that students
arriving by bus were crossing Norwich Avenue before
the start of school.’’ As I have explained previously in
this opinion, the issue is whether there is a genuine
issue of material fact that it was apparent to the defen-
dants that students arriving by bus would be in danger
if not properly supervised after arriving at school. I
would respectfully assert that, in narrowing the issue
so as to require the plaintiff to prove that it was apparent
to the defendants that students arriving by bus would
cross Norwich Avenue, the majority seems to be focus-
ing on the plaintiff’s contributory negligence. Contribu-
tory negligence, however, is a matter for the jury to
decide. It is not a basis for deciding that the identifiable
person-imminent harm exception does not apply.
Indeed, contributory negligence existed in Haynes, and
it resulted in a significantly reduced verdict, but it had
no impact on whether the identifiable person-imminent
harm exception applied. Haynes v. Middletown, supra,
314 Conn. 309. Contributory negligence and its impact
on an award of damages are matters for the jury to
determine.
The majority concludes that ‘‘[t]he issue in this case
is whether there is sufficient evidence for a jury reason-
ably to conclude that the school was aware that stu-
dents were crossing Norwich Avenue in violation of
school policy after getting off the bus on school prop-
erty and before the start of the school day. There is no
such evidence.’’ (Emphasis omitted.) I disagree.
Although all of the defendants who were deposed testi-
fied that they had no knowledge of students crossing
Norwich Avenue after getting off the bus, the plaintiff
has established a genuine issue of material fact as to
whether the defendants knew or should have known
that their acts or omissions likely would have subjected
the plaintiff to imminent harm. Specifically, the evi-
dence demonstrated that the school had a policy of
posting staff members at the bus port and that the
purpose of that policy was to ensure that students were
safe and went into school when they got off the bus.
Furthermore, the plaintiff signed an affidavit indicating
that many students left school property in the morning
after getting off of buses and crossed Norwich Avenue.
Taking this evidence in the light most favorable to the
plaintiff, I would conclude that a reasonable juror could
have concluded that the defendants knew or should
have known that there was a risk that students would
leave school property and cross Norwich Avenue in the
morning before the start of school. Accordingly, the
trial court should not have granted summary judgment
in the present case.
In the alternative, I would reverse the trial court’s
award of summary judgment as it related to the defen-
dants’ discretionary acts and remand this case to the
trial court for a new hearing so that the correct legal
standard may be applied. Ordinarily, the trial court’s
failure to apply the correct legal standard results in a
remand to the trial court for application of the correct
standard. In deciding that a remand is appropriate, we
have previously reasoned as follows: ‘‘[A] party is gener-
ally entitled to a new trial when, on appeal, a different
legal standard is determined to be required, unless we
conclude that, based on the evidence, a new trial would
be pointless. . . . We presume that any insufficiency
in proof was caused by the subsequent change in the law
. . . [and] not the [party’s] failure to muster evidence.’’
(Citation omitted; internal quotation marks omitted.)
McDermott v. State, 316 Conn. 601, 611, 113 A.3d 419
(2015). Similarly, in the present case, I would conclude
that any insufficiency in proof by the plaintiff was
caused by the subsequent change in the law and that
he should be given the chance to muster evidence in
light of the new legal standard.
Additionally, a remand for a new hearing is proper
in the present case because the trial court’s analysis is
based on two propositions that we specifically disa-
vowed in Haynes. First, the trial court explained that
‘‘[t]he present case also does not fall within the limited
circumstances under which imminence may be estab-
lished. This is not a case that involves a discrete place
and time at which the harm could have occurred. Even
assuming that the injury occurred in a discrete place
and thus was limited in geographical scope, the injury
was not limited in duration, but could have occurred
at any time. Contrary to the arguments of the plaintiff,
it could have occurred before, during, or after school
hours, and the ‘condition’ causing the injury, i.e., a dan-
gerous intersection, cannot be considered to have been
temporary. . . . Here . . . the harm could have
occurred to any student that left school premises at any
time and attempted to cross the subject intersection.’’
(Citations omitted.) Second, the trial court further rea-
soned as follows: ‘‘Here, there is nothing indicating that
the risk of harm was imminent. The alleged danger was
not limited to a discrete, nonrecurring period of time,
such as is the case with a danger that arises from a
particular patch of ice, nor was the danger limited to
a discrete yet recurring and predictable . . . period of
time, as when young children are left unsupervised for
a half hour period at the same time each day.’’ Finally,
the trial court concluded that ‘‘[a]n injury at the subject
intersection could have occurred at any time or not at
all.’’ In Haynes, however, we explicitly stated ‘‘that the
portion of this court’s decision in Burns, on which
Purzycki relied, holding that a harm is imminent when
the condition causing the risk of harm is temporally
limited and the risk of harm is ‘significant and foresee-
able’ should be overruled.’’ Haynes v. Middletown,
supra, 314 Conn. 316. In Haynes, we further explained
that ‘‘[o]ur statement in Evon v. Andrews, [211 Conn.
501, 508, 559 A.2d 1131 (1989)], that a harm is not
imminent if it ‘could have occurred at any future time
or not at all’ was not focused on the duration of the
alleged dangerous condition, but on the magnitude of
the risk that the condition created.’’ (Emphasis in origi-
nal.) Haynes v. Middletown, supra, 322.
Further, in the present case, the trial court held that
‘‘the plaintiff in the present case is not an elementary
school student to which the same duty of supervision
is owed.’’ In support of this proposition, the trial court
cited Heigl v. Board of Education, 218 Conn. 1, 8, 587
A.2d 423 (1991), in which this court stated the following:
‘‘Neither the General Statutes nor our decisional law
has ever stated that a board of education has a specific
duty to supervise high school students. Even if such a
duty exists, actions pursuant to such a duty are discre-
tionary if they are performed wholly for the direct bene-
fit of the public . . . .’’ (Internal quotation marks
omitted.) We have, however, subsequently explained
that ‘‘[i]n Burns . . . this court distinguished Heigl on
the ground that Heigl had ‘turned on the public/private
duty distinction of the public duty doctrine,’ and did
not involve the ‘foreseeable class of victim exception
to governmental immunity, which applies irrespective
of whether the official’s duty is technically public or
private in nature.’ This court held in Burns that school
officials do have a general duty ‘to protect the pupils
in [their] custody from dangers that may reasonably be
anticipated. . . . Burns did not limit this holding to
grade school students. Accordingly, we conclude that
Heigl is inapplicable when the plaintiff has made a
colorable claim that the defendant’s failure to supervise
a high school student has subjected the student to immi-
nent harm.’’ (Citation omitted; footnotes omitted.)
Haynes v. Middletown, supra, 314 Conn. 314–15. In
doing so, we emphasized that the fact finder could take
into account all of the surrounding facts and circum-
stances in order to determine if a harm was imminent.
Id., 315 n.7. Therefore, this justification for granting
the defendants’ motion for summary judgment in the
present case was specifically rejected in Haynes.
On the basis of the foregoing, I would conclude that,
at a minimum, this case should be remanded to the trial
court for a new hearing on the defendants’ motion for
summary judgment in which both sides would be able
to prepare their case in light of our decisions in Haynes
and Edgerton.
Therefore, for the reasons stated previously in this
opinion, I respectfully concur and dissent.
1
The remaining plaintiff in the present case, Kiersten Strycharz, is not a
party to this action in her individual capacity. See footnote 1 of the majority
opinion. For the sake of simplicity, I refer to Joseph Strycharz as the plain-
tiff hereinafter.
2
Although there are other defendants in the present case; see footnote 2
of the majority opinion; only Elizabeth A. Ciccione, Andrew C. George, Jr.,
William D. Hettrick, Linda M. Hodge, Karen A. Loiselle, Jeffry P. Mathieu,
John Mazzarella, Dale J. McCubrey, Ross Sward, and the town of Colchester
are relevant to the present appeal. For the sake of simplicity, I refer to these
parties collectively as the defendants and individually by name throughout
this opinion.
3
I agree with both the facts and the standard of review set forth by the
majority. For the sake of clarity, I provide additional facts where necessary
for my analysis.