Osborn v. City of Waterbury , 181 Conn. App. 239 ( 2018 )

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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 brought this action on her own behalf and on behalf
of her minor child, T, to recover damages for personal injuries that T
sustained when she was assaulted by other students during a lunchtime
recess at her elementary school. The matter was tried to the court,
which rendered judgment in favor of the plaintiffs. The defendants, the
city of Waterbury and the Waterbury Board of Education, appealed to
this court, claiming, inter alia, 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 four
hundred students on the playground. Held that the trial court improperly
rendered judgment in favor of the defendants, as the plaintiffs were
required to present expert testimony as to the standard of care applicable
to the defendants under the circumstances; because the policies and
procedures of our public school system are highly regulated by governing
bodies and accreditation organizations, and the standards are set by
professionals, the standard of care regarding the number of supervisors
needed to ensure the safety of elementary school students on a play-
ground was not a matter of common knowledge and, thus, under those
circumstances, the plaintiffs were required to produce expert testimony
on the standard of care and to show how the defendants breached that
standard, which the plaintiffs failed to do.
Argued February 5—officially released April 17, 2018
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bury, where the action as withdrawn as to the defen-
dants Charles Stango et al.; thereafter, the matter 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; subse-
quently, the court, Hon. Barbara J. Sheedy, judge trial
referee, issued an articulation of its decision, and the
defendant Danielle Avalos et al. withdrew their appeal.
Reversed; judgment directed.
Daniel J. Foster, corporation counsel, for the appel-
lants (named defendant et al.)
Richard M. Franchi, for the appellees (plaintiffs).
Opinion
LAVINE, J. This personal injury action concerns the
injuries the minor plaintiff, Tatayana Osborn (child),1
sustained during a lunchtime recess at her elementary
school. The defendants, the city of Waterbury (city)
and the Waterbury Board of Education (board), appeal
from the judgment of the trial court rendered in favor
of the plaintiffs.2 On appeal, the defendants claim that
the trial court improperly (1) rejected their special
defense of governmental immunity for discretionary
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 fifty students
on the playground, (3) found 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, and (4) 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. We
agree with the defendants’ third claim and conclude,
as a matter of law, that without expert testimony, the
court could not properly have found that the defendants
breached their duty of care to the child because there
was an inadequate number of adults on the playground
to supervise the students at the time the child was
injured. We, therefore, reverse the judgment of the
trial court.3
The following facts are relevant to our resolution of
the defendants’ appeal. 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 to repair and resulted in scarring. The plaintiffs
commenced the present action against the city, the
board, the president of the board, and several members
of the school staff. See footnote 2 of this opinion. The
plaintiffs alleged, among other things, that certain mem-
bers of the school staff were careless and negligent in
failing to supervise the students on the playground and
protect the child from injury. As to the city, the plaintiffs
alleged, in part, that the child was an identifiable victim
and that the city owed her a duty to protect her safety
on school premises. As to the board, the plaintiffs
alleged, in part, that the board was responsible for
establishing and enforcing policies regarding the educa-
tion and safety of students such as the child by hiring
and training school staff to protect the students’ safety.
As a result of the defendants’ claimed breach of duty,
the child suffered lacerations to her nose and cheek,
which resulted in scarring, among other things. The
defendants denied the allegations of negligence and
asserted three special defenses.4
The parties tried the case to the court. Following the
presentation of evidence, the court issued a memoran-
dum 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 post-traumatic 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. At the time of the incident, classroom
teachers were on luncheon recess.5 The court ‘‘con-
clude[d]’’ that one student intern and three or four 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 found that,
at trial, it was clear the child was conscious of her facial
scarring and that she considered that scarring to be her
primary, perhaps only, sequela of the incident. The scars
have diminished significantly. The court’s review of the
exhibits persuaded it that the most serious of her injur-
ies was the effect the incident has had on the child’s
behavior. Since the incident, the child has demonstrated
unpleasant, even rude, behavior in the presence of fam-
ily and other caregivers. She acts out, and the suggestion
is strong that she presents at school as unfriendly, per-
haps even hostile. It was the court’s view that the child
would benefit from additional behavioral counseling.
The court stated that its substantial award was intended
to encourage continued therapy and occupational train-
ing for the child.
Although the plaintiffs’ counsel did not provide the
court with a list of medical expenses incurred, the court
reviewed all of the exhibits and concluded that the
medical expenses were $7090.47. The court stated that,
although no evidence was offered to support an ongoing
need for continued therapy in any form, its award would
permit the same should the family determine future
treatment is desirable for the child. The court did not
award damages for permanency in the absence of medi-
cal testimony in support of it. The court entered judg-
ment in favor of the plaintiffs in the amount of
$67,090.47.
The dispositive claim in this appeal is whether the
court improperly concluded that ‘‘one . . . student
intern and three . . . or four . . . staff members were
not sufficient to exercise proper control over perhaps
as many as . . . (400) students’’ where there was no
evidence that any defendant breached the pertinent
standard of care. The defendants argue on appeal that
the plaintiffs failed to produce any evidence, let alone
expert testimony, that the pertinent standard of care
required more than four or five adults to monitor stu-
dents on the playground and therefore the court’s find-
ing that the defendants breached the standard of care
was clearly erroneous. We agree with the defendants
that the plaintiffs were required to present expert testi-
mony as to the standard of care applicable to the defen-
dants under the circumstances.
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury. . . . Contained within the
first element, duty, there are two distinct considera-
tions. . . . First, it is necessary to determine the exis-
tence of a duty, and [second], if one is found, it is
necessary to evaluate the scope of that duty. . . . We
sometimes refer to the scope of that duty as the requisite
standard of care.’’ (Internal quotation marks omitted.)
Utica Mutual Ins. Co. v. Precision Mechanical Ser-
vices, Inc., 122 Conn. App. 448, 454, 998 A.2d 1228, cert.
denied, 298 Conn. 926, 5 A.3d 487 (2010).
The question of whether a duty exists is a question
of law over which we exercise plenary review. LePage
v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002). Pro-
fessional negligence ‘‘is frequently defined as the failure
of one rendering professional services to exercise the
degree of skill and learning commonly applied under
all the circumstances in the community by the average
prudent reputable member of the profession with the
result of injury, loss, or damage to the recipient of those
services . . . .’’ (Internal quotation marks omitted.)
Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App.
368, 375, 889 A.2d 829 (2006).
‘‘In a negligence action . . . expert testimony will
be required [i]f the determination of the standard of
care requires knowledge that is beyond the experience
of a normal fact finder . . . . The requirement of
expert testimony . . . serves to assist lay people, such
as members of the jury and the presiding judge, to
understand the applicable standard of care and to evalu-
ate the defendant’s actions in light of that standard
. . . . [A]lthough expert testimony may be admissible
in many instances, it is required only when the question
involved goes beyond the field of the ordinary knowl-
edge and experience of the tier of fact.’’ (Footnotes
omitted; internal quotation marks omitted.) Brye v.
State, 147 Conn. App. 173, 181–82, 81 A.3d 1198 (2013).
We conclude, as a matter of law, that the standard
of care regarding the number of supervisors needed to
ensure the safety of elementary school students on a
playground is not a matter of common knowledge; far
from it. The policies and procedures of our public
school system are highly regulated by governing bodies
and accreditation organizations. School teachers and
administrators are required to be accredited in accor-
dance with educational standards. The plaintiffs them-
selves alleged that, under the laws of the state, the city
is charged with the control and supervision of students
in elementary schools. As to the board, the plaintiffs
alleged that it was responsible for establishing and
enforcing its policies, regulations and procedures
regarding the education and safety of students such
as the plaintiff. The standards, therefore, are set by
professionals and are not within the common knowl-
edge of the general public. A judge’s subjective view
on the subject is far from sufficient.
In their appellate brief, the plaintiffs argue that the
need for expert testimony was not brought to the atten-
tion of the court. That argument is unpersuasive given
the record6 and the law. The plaintiffs were required
to produce expert testimony on the standard of care
and to prove that the defendants’ conduct did not mea-
sure up to that standard. See Buckley v. Lovallo, 2 Conn.
App. 579, 582–83, 481 A.2d 1286 (1984) (failure of hospi-
tal to have written rules for its conduct was insufficient
to establish violation of standard of care in absence of
proper showing that having such rules was standard
practice).7
In the present case, the plaintiffs failed to present
expert testimony as to the standard of care related to
the number of supervisors needed on an elementary
school playground to ensure the safety of the students
during recess. The plaintiffs also failed to present expert
testimony that the number of staff on the playground
supervising the children at the time the child was
injured constituted a breach of the standard of care.
For the foregoing reasons, the court erred as a matter
of law in rendering judgment for the plaintiffs.
The judgment is reversed and the case is remanded
with direction to render judgment for the defendants.
In this opinion the other judges concurred.
1
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 Osborn as the plaintiffs.
2
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 Perrealt, 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 Perrealt
were liable for the plaintiffs’ injuries. Avalos and Perrealt, therefore, with-
drew from the present appeal. In this opinion, we refer to the city and board
as the defendants.
3
Because we resolve the appeal on the ground that the court improperly
concluded that there was an insufficient number of staff on the playground
to ensure the safety of students, we need not address the remainder of the
defendants’ claims.
4
The special defenses were as follows: (1) municipal employees of the
state are entitled to qualified immunity for the performance of discretionary
duties; (2) the city is entitled to governmental immunity pursuant to General
Statutes § 52-557n (a) (2) (B); and (3) members of municipal boards who
are not compensated for such membership are entitled to immunity for any
error or omission made in the exercise of such person’s policy or decision-
making responsibilities pursuant to § 52-557n (c).
5
The court found no evidence to establish that staff lunch times were
staggered. It also found no evidence to suggest that only some members of
the student body were released from lunch at a given time. The court found
it more likely that the student body ate together in the lunchroom and then
went outside for recreation in large numbers. On appeal, the defendants
dispute the court’s findings regarding staggered lunches and the release of
students to the playground. They cite testimony to the contrary, e.g., Avalos
thought that there were no more than fifty students on the playground at
the time of the subject incident. We need not decide whether the court’s
findings with respect to staggered lunches and release to the playground
are clearly erroneous as we reverse the court’s judgment on the basis of
its conclusion that there was an insufficient number of staff supervising the
students on the playground at the time of the incident.
6
During final argument before the trial court, the following exchange
took place between counsel for the defendants and the court.
‘‘[The Defendants’ Counsel]: There’s been no evidence by anyone—by
the plaintiff indicating that—or showing that—how many individuals on a
playground would necessarily make it safe. There’s been no expert testimony
regarding that.
‘‘The Court: Well, I agree with you on that. I don’t know that it’s neces-
sary, however.’’
7
The plaintiffs also argue on appeal that the defendants could be found
negligent pursuant to statute or policy and that there was testimony regard-
ing a board policy that there was to be one staff member for every 125
students on the playground. The written policy, however, was not admitted
into evidence, and the court made no finding in that regard.
In the context of medical malpractice actions, our Supreme Court has
stated that institutional ‘‘rules, regulations and policies do not themselves
establish the standard of care.’’ Van Steensburg v. Lawrence & Memorial
Hospitals, 194 Conn. 500, 506, 481 A.2d 759 (1984); see also Baxter v.
Cardiology Associates of New Haven, P.C., 46 Conn. App. 377, 390–91, 699
A.2d 271 (affirming trial court’s exclusion, on relevancy grounds, of evidence
related to procedures followed by hospital personnel for obtaining blood
and stating evidence ‘‘would be relevant only if it was later supported by
expert testimony that a cardiologist would rely on a resident to order blood
on an expeditious basis’’), cert. denied, 243 Conn. 933, 702 A.2d 640 (1997).
We need not reach the question of whether such cases are applicable in a
suit against a municipality. In the present case, the trial court made no
finding as to the standard of care on the basis of school policy.