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TATAYANA OSBORN ET AL. v. CITY OF
WATERBURY ET AL.
(AC 39574)
Lavine, Prescott and Harper, Js.
Syllabus
The plaintiff mother sought to recover damages for personal injuries that
her minor child, T, sustained when she was assaulted by other students
during a lunchtime recess at her public elementary school. After a trial
to the court, judgment was rendered in favor of the plaintiffs. The
municipal defendants appealed to this court, claiming, among other
things, that the trial court improperly determined, in the absence of
expert testimony, that one student intern and three or four staff members
were insufficient to control as many as 400 students on the playground.
This court reversed the trial court’s judgment, concluding that expert
testimony was required to prove the standard of care necessary to
determine how many adults were required to control as many as 400
students on the playground. The plaintiffs, on the granting of certifica-
tion, appealed to our Supreme Court, which reversed this court’s judg-
ment and concluded that the fact finder did not need to apply scientific or
specialized knowledge to determine whether the defendants adequately
supervised the children in the present case, and remanded the case to
this court with direction to consider the defendants’ other claims on
appeal. Held that the trial court’s finding that there were as many as
400 students on the playground at the time T sustained her injuries was
clearly erroneous and inextricably entwined with the court’s conclusion
that the defendants were negligent, constituting harmful error that
required a new trial; such finding was in direct contrast to the evidence
presented by school personnel, it was not supported by any other evi-
dence and was premised on an additional clearly erroneous finding that
the entire student body was released for recess simultaneously, rather
than in waves.
(One judge dissenting)
Submitted on briefs January 6—officially released May 26, 2020
Procedural History
Action to recover damages for personal injuries sus-
tained by the named plaintiff as a result of the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of Water-
bury, where the action was withdrawn as to the defen-
dants Charles Stango et al.; thereafter, the case was
tried to the court, Hon. Barbara J. Sheedy, judge trial
referee; judgment for the plaintiffs, from which the
named defendant et al. appealed to this court, Lavine,
Prescott and Harper, Js.; subsequently, the court, Hon.
Barbara J. Sheedy, judge trial referee, issued an articu-
lation of its decision, and the defendants Danielle
Avalos et al. withdrew their appeal; thereafter, this
court reversed the trial court’s judgment, and the plain-
tiffs, on the granting of certification, appealed to our
Supreme Court, which reversed the judgment of this
court and remanded the case to this court with direction
to consider the defendants’ remaining claims on appeal.
Reversed; new trial.
Daniel J. Foster, corporation counsel, filed a brief
for the appellants (named defendant et al.).
Richard M. Franchi filed a brief for the appellees
(plaintiffs).
Opinion
LAVINE, J. This negligence action against the defen-
dants, the city of Waterbury (city) and the Waterbury
Board of Education (board),1 concerns the injuries that
the minor plaintiff, Tatayana Osborn (child),2 sustained
during a lunchtime recess at her elementary school.
This appeal returns to us on remand from our Supreme
Court following its reversal of this panel’s prior deci-
sion. See Osborn v. Waterbury, 333 Conn. 816, 834,
220 A.3d 1 (2019) (holding that expert testimony not
necessary to determine whether ‘‘the defendants ade-
quately supervised the children’’). Our Supreme Court
remanded the case to us ‘‘to consider the defendants’
remaining claims on appeal.’’ Id. Those claims are that
‘‘the trial court improperly (1) rejected [the defendants’]
special defense of governmental immunity for discre-
tionary acts, (2) concluded that the plaintiffs’ injuries
were caused when an inadequate number of adults were
assigned to supervise up to 400 students when there
was evidence that there were no more than 50 students
on the playground . . . and [(3)] awarded damages
intended to encourage continued therapy and occupa-
tional training for the child in the absence of evidence
that she would need such services in the future.’’ (Inter-
nal quotation marks omitted.) Id., 821–22. We agree with
the defendants’ second claim and, therefore, reverse
the judgment of the trial court and remand the matter
for a new trial.3
The following facts and procedural history, as set
forth by our Supreme Court, are relevant to our resolu-
tion of the defendants’ remaining claim. ‘‘On April 25,
2012, the child was an elementary school student when
she was assaulted by other students while they were
on the playground during the lunchtime recess. As a
result of the assault, the child sustained a cut to her
face that required sutures . . . and [that] resulted in
scarring. The plaintiffs commenced the present action
against the city [and] the board, [among others]. . . .
In their complaint, the plaintiffs alleged, inter alia, that
the plaintiffs’ injuries and damages were caused by the
negligence and carelessness of the defendant[s] in that
[they] . . . failed to adequately supervise the children
both in and out of the classroom, including the [child].
‘‘The parties tried the case to the court. Following
the presentation of evidence, the court issued a memo-
randum of decision in which it found that the child was
a fifth grade student at Sprague Elementary School in
Waterbury when she was assaulted by two or more
students on the playground. The playground was sur-
rounded by brick walls and fencing, and, following
lunch, students occupied the area for play and exercise.
More specifically, the child was surrounded by a circle
of students who physically assaulted her and pushed
her into a stone wall, causing injuries to her nose and
cheek with resulting facial scarring. The child experi-
enced posttraumatic headaches for a sustained period
of time, but the most serious effect of this schoolyard
assault was its lingering effect on the child’s emerging
personality and self-image.
‘‘The court also found that Danielle Avalos, a school
paraprofessional, was assigned to monitor the students
on the playground during recess. She was not provided
with written documents that listed her duties during
the lunchtime recess. Her two day professional develop-
ment training occurred prior to the first day of school
and focused on the forms of student bullying and the
need to distinguish between bullying and students
merely picking on other students or otherwise being
unkind to them. . . .
‘‘The trial court found that [t]here was also no evi-
dence to suggest that only portions of the student body
were released for [lunch] at a given time; it is more
likely the student body ate together in the [lunch] room
and then went outside for recreation—in large numbers.
The trial court further found that, [a]t the time of the
incident, classroom teachers were on [lunch] recess
(and there was no evidence to establish that staff lunch
times were staggered). The court concludes that 1 stu-
dent intern and 3 or 4 staff members were not sufficient
to exercise control over as many as 400 students [on
the playground].
‘‘With respect to the incident during which the child
was injured, the court found that Avalos saw a student
repeatedly punch the child in the face and push her
into a wall. A precis prepared by the nursing division of
the Waterbury Health Department referenced, a large,
deep cut on the [child’s] left cheek and a cut of lesser
depth on the bridge of her nose. . . . The court ren-
dered judgment in favor of the plaintiffs.
‘‘After trial, the defendants sought an articulation
from the trial court pursuant to Practice Book §§ 61-
10 and 66-5. Specifically, the defendants requested that
the trial court articulate (1) whether the court found
either or both of the individual defendants who remain
in the case to be liable for the plaintiffs’ injuries and
losses, and, if so, on what basis, and (2) whether the
court found that the plaintiffs’ injuries and losses were
caused by the fact, as found by the court, that the
number of adults present on the playground where the
injuries took place was insufficient to exercise proper
control over the number of students present.
‘‘The trial court responded to the defendants’ request
for articulation as follows:
(1) This court did not find any remaining individual
(specifically . . . Avalos or Donna Perreault) was lia-
ble for the plaintiffs’ injuries or losses . . . . (2) This
court found [that] the injuries and/or losses were as a
result of the [city’s] failure to exercise proper control
over the number of students present. (3) The court (in
[an] August 12, 2016 ruling) found [that] the plaintiffs’
injuries were caused by insufficient staffing of person-
nel to exercise proper control over the number of stu-
dents on the playground at the time (perhaps as many
as 400 students) . . . . (4) The court concluded [that]
the injuries to the plaintiffs were proximately caused
by an insufficient number of staff personnel—to moni-
tor the actions of students on the playground on the
date of injury. . . .
‘‘The defendants appealed from the judgment of the
trial court to the Appellate Court . . . .’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Id., 819–21. Additional facts will be set forth
as necessary.
The defendants claim on appeal that the court
improperly found that the plaintiffs’ injuries were
caused by the fact that 1 student intern and 3 or 4 staff
members were insufficient to exercise proper control
over perhaps as many as 400 students. The defendants
argue that the factual finding with regard to the number
of students on the playground at the time the child was
injured was clearly erroneous because there was no
evidence that there were ‘‘perhaps as many as [400]
students’’ on the playground. The plaintiffs counter that
there was evidence of a total of 400 students in the
school, and that the evidence varied as to the number
of students on the playground at the time the child was
injured, all of which the court could have chosen to
ignore. On the basis of our careful review of the record,
we are left with a firm conviction that the trial court
made a mistake in finding that there were ‘‘perhaps as
many as 400 students’’ on the playground at the time
the child was injured. That conclusion, in our view, is
clearly erroneous and unsupported by the facts.
We begin with the standard that governs our review
of the defendants’ claim. ‘‘A court’s determination is
clearly erroneous only in cases in which the record
contains no evidence to support it, or in cases in which
there is evidence, but the reviewing court is left with
the definite and firm conviction that a mistake has
been made.’’ (Emphasis added; internal quotation marks
omitted.) Considine v. Waterbury, 279 Conn. 830, 858,
905 A.2d 70 (2006). ‘‘As a reviewing court, [w]e cannot
act as a [fact finder] or draw conclusions of facts from
the primary facts found, but can only review such find-
ings to determine whether they could legally, logically
and reasonably be found, thereby establishing that the
trial court could reasonably conclude as it did. . . .
Moreover, the fact that there is support in the record
for a different conclusion [than the one reached by the
court] is irrelevant at this stage in the judicial process.
On appeal, we do not review the evidence to determine
whether a conclusion different from the one reached
could have been reached. . . . [Instead] [w]e review
the totality of the evidence, including reasonable infer-
ences therefrom, to determine whether it could support
the trier’s decision.’’ (Citation omitted; internal quota-
tion marks omitted.) Benchmark Municipal Tax Ser-
vices, Ltd. v. Greenwood Manor, LLC, 194 Conn. App.
432, 441, 221 A.3d 501 (2019).
At trial, the following evidence was before the court.
Donna Perreault, the principal of the school at the time
of the incident, testified that there were ‘‘around proba-
bly plus or minus 400 [students]’’ at the school and that
there were approximately twenty-five classrooms in
kindergarten through fifth grade at the school. Each
school day, the students ate lunch in three waves in
the ‘‘caf-gym-atorium’’ and staff members were assigned
to cover those waves. After students ate and cleared
their lunch tables, they were called by table to line up
at a side door to go outside for recess. There was a
staff member positioned at the side door who walked
them outside for recess and another staff member posi-
tioned outside waiting for the students. There were
typically three or four staff members assigned to moni-
tor the children at recess who were stationed around
the playground with walkie-talkies to facilitate commu-
nication. They either watched the students or engaged
the students in a game. At the end of recess, the assigned
staff members had students line up and wait for their
respective teachers to walk them back into the school.
Perreault testified that, on the date that the child was
injured, there were no more than 150 students who had
been dismissed from lunch to recess. That approxima-
tion was based on her understanding that there were
three fourth grade classes and three fifth grade classes
that comprised the lunch wave in question, and that
each class had approximately twenty-five students. She
also testified that there were four staff members
assigned to cover recess at the time the child was
injured. Danielle Avalos, a paraprofessional who was
on recess duty and was the first staff member to respond
to the incident, however, testified that she did not think
that there were more than fifty students on the play-
ground at the time of the incident. Significantly, in clos-
ing argument, counsel for the plaintiffs argued that ‘‘we
know it was probably between 90 and 150 children on
the playground’’ at the time the child was injured.
As stated previously, the court concluded in its mem-
orandum of decision that ‘‘1 . . . student intern and 3
. . . or 4 . . . staff members were not sufficient to
exercise proper control over perhaps as many as [400]
students.’’ The court further stated that ‘‘[t]here was
also no evidence to suggest that only portions of the
student body were released for luncheon at a given
time; it is more likely that the student body ate together
in the luncheon room and then went outside for recre-
ation—in large numbers.’’ The defendants subsequently
filed a motion for articulation requesting the court to
articulate, inter alia, ‘‘whether the [c]ourt found that
the [child’s] injuries and losses were caused by the
fact, as found by the [c]ourt, that the number of adults
present on the playground where the injuries took place
was insufficient to exercise proper control over the
number of students present.’’ In response, the court
ruled that it ‘‘found the injuries and/or losses were as
a result of the [c]ity of Waterbury’s failure to exercise
proper control over the number of students present’’;
‘‘found the [p]laintiffs’ injuries were caused by insuffi-
cient staffing of personnel to exercise proper control
over the number of students on the playground at the
time (perhaps as many as [400] . . . students)’’; and
‘‘concluded the injuries to the [p]laintiffs were proxi-
mately caused by an insufficient number of staff person-
nel . . . to monitor the actions of students on the play-
ground on the date of injury.’’
On the basis of our comprehensive review of the trial
record, and giving due deference to the trial court, we
are left with a firm conviction that the trial court made
a mistake in finding that there were ‘‘perhaps as many
as 400 students’’ on the playground at the time the child
was injured. Although there was testimony that there
were approximately 400 students who attended the
school, there was absolutely no evidence that all of
those students ate lunch together and were dismissed
to recess at the same time. In fact, all of the evidence
was to the contrary. As stated previously, the school
had three separate lunch waves that were dismissed to
recess following the lunch period. The principal of the
school testified that there were approximately 150 stu-
dents at recess when the child was injured and the
paraprofessional who responded to the incident testi-
fied that there were no more than 50. In light of this
evidence, it does not logically or reasonably follow that
‘‘perhaps as many as 400 students’’ were outside at
recess at the time the child was injured. Moreover, even
though closing argument is not evidence at trial, the
plaintiffs’ own counsel conceded in closing argument
that ‘‘we know it was probably between 90 and 150
children on the playground.’’ We, therefore, are left with
a firm conviction that the trial court based its finding
that there were ‘‘perhaps as many as 400 students’’
at recess on speculation that was unsupported by the
evidence. The finding is thus clearly erroneous.
Our conclusion is bolstered by the fact that the trial
court’s finding that there were ‘‘perhaps as many as 400
students’’ outside at recess was premised on another
clearly erroneous factual finding. The court stated in
its memorandum of decision that ‘‘[t]here was also no
evidence to suggest that only portions of the student
body were released for luncheon at a given time; it is
more likely that the student body ate together in the
luncheon room and then went outside for recreation—
in large numbers.’’ (Emphasis added.) This finding also
is clearly erroneous because there was unquestionably
evidence to the contrary—namely, testimony that the
student body went to lunch and recess in three separate
waves. In In re Jacob W., 330 Conn. 744, 774, 200 A.3d
1091 (2019), our Supreme Court was left with a firm
conviction that a mistake was made where the trial
court stated that there was ‘‘no evidence’’ despite an
abundance of evidence in the record to the contrary.
We are left with a similar conviction in the present case.
We now turn to determine whether the trial court’s
clearly erroneous factual finding warrants reversal of
the judgment rendered against the defendants. ‘‘[W]here
. . . some of the facts found [by the trial court] are
clearly erroneous and others are supported by the evi-
dence, we must examine the clearly erroneous findings
to see whether they were harmless, not only in isolation,
but also taken as a whole. . . . If, when taken as a
whole, they undermine appellate confidence in the
court’s [fact-finding] process, a new hearing is
required.’’ (Internal quotation marks omitted.) 73-75
Main Avenue, LLC v. PP Door Enterprise, Inc., 120
Conn. App. 150, 161, 991 A.2d 650 (2010).
In determining whether the court’s clearly erroneous
factual finding constituted harmful error, we must first
acknowledge the following statements by our Supreme
Court: ‘‘Unlike the defendants and the Appellate Court,
we understand the trial court’s response to the request
for articulation, namely, that ‘the injuries and/or losses
were as a result of the [city’s] failure to exercise proper
control over the number of students present,’ as a con-
clusion that there was inadequate supervision, not that
there was solely an inadequate number of staff on the
playground’’; Osborn v. Waterbury, supra, 333 Conn.
822–23; ‘‘a review of the allegations of the plaintiffs’
complaint, the evidence presented at trial, the tran-
scripts of the trial, and a fair reading of the memoran-
dum of decision and articulation in the light most favor-
able to sustaining the trial court’s judgment
demonstrate that the issue for the trial court to deter-
mine was whether the supervision was adequate, not
merely whether the number of staff was sufficient’’;
id., 823 n.3; ‘‘[the] articulation makes clear that the
supervisor to student ratio was not the sole basis of
the trial court’s conclusion that the defendants were
negligent but that, regardless of the supervisor to stu-
dent ratio, the defendants did not exercise proper con-
trol over the students’’; (emphasis in original) id. n.4;
‘‘[t]he fact finder was not asked to determine solely the
required ratio of children to staff members; instead,
the question confronting the fact finder, based on the
allegations in the complaint and the evidence presented
at trial, was whether there was adequate supervision
of the children involved in this particular incident’’;
id., 831; ‘‘adequacy is not based just on numbers, and
nothing in the complaint limited the plaintiffs’ claim to
a mere numerical calculation between the number of
students and the number of adults. This was an inade-
quate supervision case’’; id., 832; and ‘‘the issue in the
present case was whether the supervision of the chil-
dren was adequate when a large group of children was
able to gather around the child, throwing stones at her,
and with one student repeatedly punching the child in
the face and pushing her into a wall.’’ Id., 834.
Considering all of this language together as a whole,
our Supreme Court determined that the trial court could
have found the defendants negligent on the basis that
there was an inadequate number of staff to students
or on the basis that the act of supervision itself was
inadequate—or both. It is not at all clear—in light of
the convoluted trial record, including the trial court’s
ambiguous and internally inconsistent memorandum of
decision and subsequent articulation, and the Supreme
Court’s reading of that record—whether the court found
the defendants negligent solely on the basis of inade-
quacy in the act of supervision itself or on the basis of
both grounds. Notwithstanding this caliginosity, how-
ever, we are still able to determine that the error was
not harmless.
The trial court’s memorandum of decision and its
subsequent articulation repeatedly refer, both directly
and indirectly, to the clearly erroneous fact that there
were ‘‘perhaps as many as 400 students’’ on the play-
ground, including references to the ‘‘number of stu-
dents’’ and the ‘‘number of staff.’’ Specifically, the only
explicit finding of negligence in the trial court’s memo-
randum of decision contained this clearly erroneous
factual finding: ‘‘The court concludes that one (1) stu-
dent intern and three (3)—or four (4)—staff members
were not sufficient to exercise proper control over per-
haps as many as four hundred (400) students.’’
(Emphasis added.) Moreover, in its subsequent articula-
tion, each of the court’s three paragraphs which pertain
to the court’s finding of negligence contain some refer-
ence to or reliance upon this clearly erroneous factual
finding: ‘‘[1] This [c]ourt found the injuries and/or losses
were as a result of the [c]ity of Waterbury’s failure to
exercise proper control over the number of students
present. [2] The [c]ourt . . . found the [p]laintiffs’
injuries were caused by insufficient staffing of person-
nel to exercise proper control over the number of stu-
dents on the playground at the time (perhaps as many
as four hundred (400) students) . . . . [3] The [c]ourt
concluded the injuries to the [p]laintiffs were proxi-
mately caused by an insufficient number of staff per-
sonnel . . . to monitor the actions of students on the
playground on the date of injury.’’ (Emphasis added.)
Because the trial court’s clearly erroneous finding
that there were ‘‘perhaps as many as 400 students’’ on
the playground was so inextricably intertwined with
the court’s conclusion that the defendants were negli-
gent, we are constrained to conclude that the court’s
error was harmful.4 Moreover, our careful review of the
record has undermined our confidence in the court’s
fact-finding process to the point where there is no other
adequate or just remedy but to order a new trial. See
73-75 Main Avenue, LLC v. PP Door Enterprise, Inc.,
supra, 120 Conn. App. 161.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion HARPER, J., concurred.
1
The plaintiffs also brought this action against Stephanie Pascale, a fifth
grade teacher; Charles Stango, the president of the board; Danielle Avalos,
a paraprofessional at the school; and Donna Perreault, the school principal.
They withdrew the action against Pascale and Stango in the trial court. In
its articulation, the court clarified that it did not find that Avalos and Perre-
ault were liable for the plaintiffs’ injuries. Avalos and Perreault, therefore,
did not participate in the present appeal. Any reference in this opinion to
the defendants is to the city and the board.
2
The child commenced the present action by and through her mother,
Tacarra Smith. Smith also alleged that she sustained damages as a result
of the child’s injuries. We refer to Smith and the child as the plaintiffs.
3
Because the defendants’ second claim is dispositive of their appeal, our
resolution of the present case does not depend on the other two claims.
We note, however, our agreement with the dissent’s resolution of the govern-
mental immunity issue and our disagreement with the dissent’s resolution
of the damages issue. Specifically, unlike the dissent, we would characterize
the $60,000 award as economic damages in light of the court’s statement that
‘‘[i]t is this court’s view the [child] would benefit from additional behavior
counseling and the substantial award here determined is intended to encour-
age continued therapy and occupational training. . . . No evidence was
offered to support an ongoing need for continued therapy in any form though
the award here will permit the same should the family determine future
treatment is desirable.’’ In our view, the court abused its discretion in
awarding $60,000 for future medical treatment because, in the absence of
any evidence to support a reasonable likelihood that future treatment would
be necessary, it was based on mere speculation. See Calvi v. Agro, 59 Conn.
App. 732, 735–36, 757 A.2d 1260 (2000) (‘‘[A]s to future medical expenses, the
[trier of fact’s] determination must be based upon an estimate of reasonable
probabilities, not possibilities. . . . The obvious purpose of this require-
ment is to prevent the [trier of fact] from awarding damages for future
medical expenses based merely on speculation or conjecture. . . . The
evidence at trial must be sufficient to support a reasonable likelihood that
future medical expenses will be necessary.’’ (Citation omitted; internal quota-
tion marks omitted.))
4
We agree, of course, with the general proposition relied on by the dissent,
that, as an intermediate appellate court, we are bound to follow the direction
of our Supreme Court. But we differ with the dissent’s conclusion as to
how this general proposition applies in the present case.
Specifically, the dissent concludes that our Supreme Court reversed this
court’s determination that the plaintiffs’ case failed as a matter of law
without expert testimony on the number of teachers necessary to supervise
adequately the children on two grounds, one of them being that ‘‘the plain-
tiffs’ claim did not depend on a calculation of the ratio of the number of
students to the teachers supervising them at the time the child was injured.’’
It is on this basis that the dissent believes that the trial court’s error was
harmless. We, however, disagree with the dissent’s characterization of our
Supreme Court’s decision. In our view, the Supreme Court did not state or
suggest that the plaintiffs’ claim did not depend at all on the numbers;
instead it repeatedly used qualified language to state that the plaintiffs’
claim was not based solely on the numbers. The logical conclusion to draw
therefrom is that, although the plaintiffs’ claim did not depend entirely on
numbers, numbers were still integral to it. We, therefore, disagree with the
dissent’s conclusion that the trial court’s error was harmless.