Maselli v. Regional School District No. 10 ( 2020 )

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APPENDIX
THERESA MASELLI v. REGIONAL SCHOOL
DISTRICT NUMBER 10 ET AL.*
Superior Court, Judicial District of Hartford
File No. CV-XX-XXXXXXX-S
Memorandum filed June 11, 2018
Proceedings
Memorandum of decision on defendants’ motion to
dismiss. Motion granted.
A. Paul Spinella, for the plaintiff.
Kevin R. Kratzer and Ashley A. Noel, for the
defendants.
Opinion
ROBAINA, J.
FACTS
This action was brought on behalf of Angelina
Maselli, a minor, through her mother and next friend,
Theresa Maselli, seeking damages for injuries Angelina
sustained when she was hit in the face with a ball during
soccer practice.1 The incident took place at Har-Bur
Middle School (middle school) in Burlington, where
Angelina was a member of the school’s soccer team.
During the practice, the team engaged in a scrimmage
inside the gymnasium, and its coach, Robert Samu-
dosky, participated as a member of one of the teams.
At some point during the scrimmage, Samudosky
kicked the ball, which then hit Angelina in the face.
On July 13, 2016, the plaintiff filed an amended com-
plaint asserting six claims against the defendants:
Regional School District Number 10, which serves the
towns of Burlington and Harwinton; its superintendent,
Alan Beitman; the middle school’s principal, Kenneth
Smith; and Samudosky, a gym teacher for the middle
school as well as the girls’ team soccer coach. Counts
one through four are against Samudosky only, and
counts five and six are against all defendants. In her
amended complaint, the plaintiff alleges the following
facts. On October 28, 2013, Angelina was participating in
a mandatory soccer practice supervised by Samudosky,
and, during the practice, Samudosky violently kicked
a soccer ball into Angelina’s face. Samudosky did not
notify a school nurse, paramedics, or Angelina’s parents
and, despite the fact that he is not a doctor, conducted
an assessment of Angelina and determined that she had
not suffered a concussion and allowed her to continue
to play. Angelina, however, had suffered a concussion.
The defendants failed to inform the plaintiff of
Angelina’s injury, which delayed her medical diagnosis
and treatment.
On August 25, 2017, the defendants moved for sum-
mary judgment as to all counts of the plaintiff’s com-
plaint on the grounds that (1) the plaintiff’s negligence
claims are barred by governmental immunity, (2) to
the extent governmental immunity does not apply, the
plaintiff’s negligence claims fail as a matter of law, (3)
Samudosky’s conduct was not extreme and outrageous,
(4) the claim of assault and battery fails as a matter of
law, and (5) the recklessness claim fails as a matter of
law, and the defendants’ conduct did not cause
Angelina’s injuries. Along with each party’s memoran-
dum of law, the court has also received a number of
exhibits, including deposition transcripts and affidavits.
DISCUSSION
Practice Book § 17-49 provides that summary judg-
ment ‘‘shall be rendered forthwith if the pleadings, affi-
davits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.’’
‘‘In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party.’’ (Internal quotation marks
omitted.) Stuart v. Freiberg, 316 Conn. 809, 820–21, 116
A.3d 1195 (2015). ‘‘The party seeking summary judg-
ment has the burden of showing the absence of any
genuine issue [of] material facts which, under applica-
ble principles of substantive law, entitle him to a judg-
ment as a matter of law . . . and the party opposing
such a motion must provide an evidentiary foundation
to demonstrate the existence of a genuine issue of mate-
rial fact. . . . A material fact . . . [is] a fact which will
make a difference in the result of the case.’’ (Internal
quotation marks omitted.) Id., 821.
‘‘To satisfy his burden the movant must make a show-
ing 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. . . . When documents
submitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue. . . . It is not enough, however, for the opposing
party merely to assert the existence of such a disputed
issue. Mere assertions of fact . . . are insufficient to
establish the existence of a material fact and, therefore,
cannot refute evidence properly presented to the court
under Practice Book § [17-45].’’ (Internal quotation
marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223,
228, 116 A.3d 297 (2015).
‘‘[S]ummary judgment is appropriate only if a fair and
reasonable person could conclude only one way. . . .
[A] summary disposition . . . should be on evidence
which a jury would not be at liberty to disbelieve and
which would require a directed verdict for the moving
party. . . . [A] directed verdict may be rendered only
where, on the evidence viewed in the light most favor-
able to the nonmovant, the trier of fact could not reason-
ably reach any other conclusion than that embodied in
the verdict as directed.’’ (Citations omitted; emphasis
in original; internal quotation marks omitted.) Dugan
v. Mobile Medical Testing Services, Inc., 265 Conn. 791,
815, 830 A.2d 752 (2003). ‘‘While [a party’s] deposition
testimony is not conclusive as a judicial admission;
General Statutes § 52-200; it is sufficient to support
entry of summary judgment in the absence of contradic-
tory competent affidavits that establish a genuine issue
as to a material fact.’’ Collum v. Chapin, 40 Conn. App.
449, 450 n.2, 671 A.2d 1329 (1996).
I
GOVERNMENTAL IMMUNITY
Under the common law, a municipality was generally
immune from liability for its tortious acts. Martel v.
Metropolitan District Commission, 275 Conn. 38, 47,
881 A.2d 194 (2005). Our Supreme Court has ‘‘recog-
nized, however, that governmental immunity may be
abrogated by statute.’’ (Internal quotation marks omit-
ted.) Id. General Statutes § 52-557n (a) (1) provides in
relevant part: ‘‘Except as otherwise provided by law,
a political subdivision of the state shall be liable for
damages to person or property caused by: (A) The negli-
gent acts or omissions of such political subdivision or
any employee, officer or agent thereof acting within
the scope of his employment or official duties . . . .’’
‘‘[Section] 52-557n (a) (2) (B), however, explicitly
shields a municipality from liability for damages to per-
son or property caused by the negligent acts or omis-
sions which require the exercise of judgment or discre-
tion as an official function of the authority expressly
or impliedly granted by law.’’ (Internal quotation marks
omitted.) Haynes v. Middletown, 314 Conn. 303, 312,
101 A.3d 249 (2014).
There are three exceptions to discretionary act immu-
nity: ‘‘(1) the alleged conduct involves malice, wanton-
ness or intent to injure; (2) a statute provides for a cause
of action against a municipality or municipal official for
failure to enforce certain laws; or (3) the circumstances
make it apparent to the public officer that his or her
failure to act would be likely to subject an identifiable
person to imminent harm . . . .’’ (Internal quotation
marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420,
434 n.13, 165 A.3d 148 (2017). The identifiable person-
imminent harm exception has three elements: ‘‘(1) an
imminent harm; (2) an identifiable victim; and (3) a
public official to whom it is apparent that his or her
conduct is likely to subject that victim to that harm
. . . . [Our Supreme Court has] stated previously that
this exception to the general rule of governmental
immunity for employees engaged in discretionary activi-
ties has received very limited recognition in this state.
. . . If the [plaintiff fails] to establish any one of the
three prongs, this failure will be fatal to [the] claim
that [the plaintiff comes] within the imminent harm
exception.’’ (Internal quotation marks omitted.) Id., 435.
Our Supreme Court has ‘‘held that a party is an identi-
fiable person when he or she is compelled to be some-
where. . . . Accordingly, [t]he only identifiable class
of foreseeable victims that [the court has] recognized
. . . is that of schoolchildren attending public schools
during school hours because: they were intended to be
the beneficiaries of particular duties of care imposed
by law on school officials; they [are] legally required
to attend school rather than being there voluntarily;
their parents [are] thus statutorily required to relinquish
their custody to those officials during those hours; and,
as a matter of policy, they traditionally require special
consideration in the face of dangerous conditions.’’
(Citation omitted; internal quotation marks omitted.)
Id., 436; see also Strycharz v. Cady, 323 Conn. 548,
575–76, 148 A.3d 1011 (2016) (‘‘[o]ur decisions under-
score . . . that whether the plaintiff was compelled to
be at the location where the injury occurred remains
a paramount consideration in determining whether the
plaintiff was an identifiable person or member of a
foreseeable class of victims’’ (internal quotation
marks omitted)).
This rule has been narrowly applied outside of the
schoolchildren context, and, in fact, our Supreme Court
has recognized an identifiable person under this excep-
tion only once, in Sestito v. Groton, 178 Conn. 520, 423
A.2d 165 (1979), and this case has since been limited
to its facts because it was decided before the three-
pronged imminent harm test was adopted. See Edgerton
v. Clinton, 311 Conn. 217, 240, 86 A.3d 437 (2014). Since
then, although our appellate courts have addressed
claims that a plaintiff is an identifiable person or mem-
ber of an identifiable class of foreseeable victims, nei-
ther the Supreme Court nor the Appellate Court has
broadened the definition. See, e.g., Grady v. Somers,
294 Conn. 324, 356, 984 A.2d 684 (2009) (permit holder
injured at refuse transfer station owned by town was
not member of class of identifiable persons despite
being paid permit holder and resident of town); Cotto
v. Board of Education, 294 Conn. 265, 279, 984 A.2d 58
(2009) (youth director injured in school bathroom was
not identifiable person subject to imminent harm
because, if he ‘‘was identifiable as a potential victim of
a specific imminent harm, then so was every participant
and supervisor in the [summer youth] program who
used the bathroom’’); Thivierge v. Witham, 150 Conn.
App. 769, 780, 93 A.3d 608 (2014) (visitor to dog owner’s
property who was bitten by dog after municipal officer’s
alleged failure to enforce restraint order was not identi-
fiable victim because ‘‘any number of potential victims
could have come into contact with the dog following
[the municipal officer’s] issuance of the restraint
order’’); cf. St. Pierre v. Plainfield, supra, 326 Conn.
437–38.
A
Negligence Claims Against Samudosky
In counts three and four, the plaintiff asserts claims
of negligent infliction of emotional distress and negli-
gence, respectively, against Samudosky. The defen-
dants move for summary judgment as to these negli-
gence claims on the ground that they are barred by
governmental immunity and that no exception applies.
The plaintiff argues that Angelina was an identifiable
individual because she was attending a soccer practice
supervised by Samudosky and was standing six feet
away from him when he forcefully kicked the ball. A
review of the evidence submitted in support of and in
opposition to the motion for summary judgment,
viewed in a light most favorable to the plaintiff, along
with established case law, demonstrates the absence
of any genuine issue of material fact that Angelina was
not an identified individual.
In a signed and sworn affidavit, Beitman attests that
the girls’ soccer team is a voluntary extracurricular
activity and that practices are held after the mandatory
school hours have concluded. Samudosky testified at
his deposition that practices run between 3 and 5 p.m.
and that school academic courses never go past 3 p.m.
Angelina testified at her deposition that you have to try
out to be on the girls’ soccer team, that you are not
required to be on the team and that she chose to be
on the soccer team. She further testified that soccer
practice began once your last academic class finished,
between 2:45 p.m. and 3 p.m. The plaintiff attempts to
frame Angelina’s participation as involuntary by
describing the practices as mandatory. The plaintiff
attests in a signed and sworn affidavit that practices
were a mandatory event and that players were told:
‘‘If you don’t come to practice, you don’t play.’’ This
argument fails to comprehend the key reason why
schoolchildren were found to be a foreseeable class—
because they are statutorily required to attend school—
and has previously been rejected.
In Jahn v. Board of Education, 152 Conn. App. 652,
99 A.3d 1230 (2014), the plaintiff high school student
argued that there was an issue of fact as to whether
his participation in the swim team was voluntary
because he attested in his affidavit that the warm-up
drill was mandatory. Id., 667. The court rejected this
argument, stating: ‘‘[W]hile it may be true that the plain-
tiff was ‘required’ to participate in the warm-up drill if
he also desired to participate in the swim meet, the fact
remains that nothing required the plaintiff to participate
in the swim meet or, for that matter, the swim team,
in the first place. The plaintiff chose to participate in
the swim team when he joined it. He has not argued
that any statute or other source of law compelled him
to join the team or to participate in the warm-up drill.’’
Id. The Appellate Court thus found that the plaintiff
did not qualify as a member of an identifiable class of
schoolchildren. Id., 667–68.
Similarly, a student playing in a pickup basketball
game during a senior class picnic did not qualify as an
identifiable person. See Costa v. Board of Education,
175 Conn. App. 402, 408–409, 167 A.3d 1152, cert. denied,
327 Conn. 961, 172 A.3d 801 (2017). In Costa, the court
stated: ‘‘Here, it is undisputed that [the plaintiff] was
not required to attend the senior picnic, but did so
voluntarily. He also voluntarily participated in the
pickup basketball game in which he was injured. We
agree with the trial court that [the plaintiff’s] voluntary
participation did not grant him the status of an identifi-
able person entitled to protection by school authori-
ties.’’ Id., 409. In a case outside the school context,
our Supreme Court has also recently reaffirmed the
principle that one whose presence and/or participation
is voluntary and not compelled by statute or other law,
is not an identifiable person. See St. Pierre v. Plainfield,
supra, 326 Conn. 424, 432, 438. ‘‘In the present case,
the plaintiff was in no way compelled to attend the
aqua therapy sessions provided by (the rehabilitation
center). Instead, he voluntarily decided to use (the cen-
ter’s) services. Under established case law, this choice
precludes us from holding that the plaintiff was an
identifiable person or a member of an identifiable class
of persons.’’ Id.
Just like the plaintiffs in the previously discussed
cases, Angelina voluntarily chose to participate in the
soccer team. She was not required to be on the team
and, in fact, students had to try out in order to make
the team. As in Jahn, the mere fact that participation
in practices may have been mandatory does not negate
that, overall, participation in the soccer team was volun-
tary. See Jahn v. Board of Education, supra, 152 Conn.
App. 667. Angelina chose to participate in the soccer
team, just like the plaintiff in Jahn chose to participate
in the swim team and [the plaintiff in Costa] chose to
attend the senior picnic and participate in the pickup
basketball game. Accordingly, Angelina is not an identi-
fied person for purposes of the exception. Further, even
if Angelina was considered identifiable in the sense that
Samudosky knew her identity and of her presence at
practice, she would still not be an identifiable person
for purposes of the exception. The evidence establishes
that Samudosky was looking down at the ball when he
kicked it, and, therefore, any girl on the opposing team
could have been hit by the ball. See, e.g., Cotto v. Board
of Education, supra, 294 Conn. 279 (determining that
director of youth program was not identifiable victim
when he slipped in wet bathroom because ‘‘any person
using the bathroom could have slipped at any time’’
(emphasis omitted)). Because the failure to establish
any one of the prongs for the exception is fatal to a
plaintiff’s claim that they fall within it, the negligence
claims against Samudosky are barred by governmen-
tal immunity.
B
Negligence Against All Defendants
In count five, the plaintiff alleges negligence against
all of the defendants, based on the response to the
incident, such as their failure to immediately inform
her of Angelina’s injury and their failure to adequately
address Angelina’s educational needs. The plaintiff
again does not contest the discretionary nature of the
defendants’ duties but argues that Angelina falls within
the identifiable victim-imminent harm exception. The
defendants argue that Angelina was not subject to immi-
nent harm because, at the time of the alleged action
and/or inaction, harm to Angelina had already occurred.
Additionally, as the injury occurred during a routine
soccer practice and was one that is an inherent conse-
quence, it was not apparent to the defendants that a
failure to immediately ascertain what had occurred
would subject Angelina to imminent harm. The plaintiff
frames the dangerous condition as an undiagnosed head
injury and that Angelina faced the imminent harm of a
failure to diagnose, treat, and mitigate the effects of
her concussion.
‘‘[T]he 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.’’ (Internal quotation marks omitted.) Martinez v.
New Haven, 328 Conn. 1, 9, 176 A.3d 531 (2018). The
focus is on ‘‘the magnitude of the risk that the condition
created’’; (emphasis in original) Haynes v. Middletown,
supra, 314 Conn. 322; rather than ‘‘the duration of the
alleged dangerous condition . . . .’’ (Emphasis in origi-
nal.) Id. As for the apparentness prong, ‘‘to meet the
apparentness requirement, the plaintiff must show that
the circumstances would have made the government
agent aware that his or her acts or omissions would
likely have subjected the victim to imminent harm. . . .
This is an objective test pursuant to which [courts]
consider the information available to the government
agent at the time of her discretionary act or omission.’’
(Citation omitted.) Edgerton v. Clinton, supra, 311
Conn. 231.
On the basis of the summary judgment record,
Angelina cannot be said to have been subject to an
imminent harm that was apparent to the defendants.
Soccer is a contact sport; see Jaworski v. Kiernan, 241
Conn. 399, 406–407, 696 A.2d 332 (1997); and a player
getting hit by a ball, even in the face, whether during
a practice scrimmage or an actual game, is a not so
uncommon of a risk. In the present case, Angelina
briefly had a bloody nose and felt dizzy. She had a
headache, about which she told Samudosky; however,
she did not ask to sit out the rest of practice and was
able to walk from the indoor gym to the field outside.
Under these circumstances, it could not have been
apparent to the defendants that Angelina had suffered
a concussion or that a failure to immediately contact
the plaintiff would subject Angelina to the imminent
harm of exacerbated postconcussion symptoms.
As to the plaintiff’s allegations regarding Angelina’s
exacerbated postconcussion symptoms and diminished
academic performance, Angelina’s having to repeat the
seventh grade was far too attenuated from the incident
and the defendants’ alleged conduct to be considered
imminent. See Brooks v. Powers, 328 Conn. 256, 274,
178 A.3d 366 (2018) (‘‘[decedent’s] drowning was too
attenuated from the risk of harm created by the defen-
dants’ conduct for a jury reasonably to conclude that
it was imminent’’). A jury could not reasonably conclude
that the defendants, in failing to inform the plaintiff of
Angelina’s being hit with a ball or to investigate the
incident, ignored a risk that Angelina would have to
repeat an entire year of schooling. As neither the immi-
nent nor apparentness prong can be met, Angelina does
not fall within the identifiable victim-imminent harm
exception and, therefore, the negligence claim in count
five is barred by governmental immunity.
II
INTENTIONAL TORTS
A
Assault and Battery
‘‘A civil assault is the intentional causing of imminent
apprehension of harmful or offensive contact in
another. 1 Restatement (Second), Torts [§ 21 [1965].’’
DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn.
App. 590, 594, 501 A.2d 768 (1985). ‘‘[A]ctual, physical
contact (technically defined as ‘battery’) is not neces-
sary to prove civil assault’’; McInerney v. Polymer
Resources, LTD, Superior Court, judicial district of New
Britain, Docket No. CV-XX-XXXXXXX-S (October 22, 2012)
(Swienton, J.) (54 Conn. L. Rptr. 873, 874); and, thus,
‘‘[i]t is more technically correct in Connecticut civil tort
law to refer to what is commonly called an ‘assault’ as
a ‘battery.’ However, the cases rarely make that distinc-
tion.’’ Carragher v. DiPace, Docket No. CV-XX-XXXXXXX-
S, 2012 WL 6743563, *4 (Conn. Super. November 30,
2012) (Wahla, J.).
‘‘An actor is subject to liability to another for battery
if (a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third person,
or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other
directly or indirectly results.’’ (Internal quotation marks
omitted.) Alteiri v. Colasso, 168 Conn. 329, 334 n.3, 362
A.2d 798 (1975), quoting 1 Restatement (Second), supra,
§ 13. ‘‘[A]n actionable assault and battery may be one
committed wilfully or voluntarily, and therefore inten-
tionally; one done under circumstances showing a reck-
less disregard of consequences; or one committed negli-
gently.’’ (Internal quotation marks omitted.) Markey v.
Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985).
Intentional conduct is, therefore, not always required
for assault and battery; see Clinch v. Generali-U.S.
Branch, 110 Conn. App. 29, 40, 954 A.2d 223 (2008),
aff’d, 293 Conn. 774, 980 A.2d 313 (2009); nevertheless,
on the basis of the allegations in the plaintiff’s amended
complaint, count one is properly construed as a claim
of intentional and/or reckless and wanton assault and
battery. Thus, the defendants’ motion for summary judg-
ment will be evaluated against these two theories.
1
Intentional
‘‘A wilful or malicious injury is one caused by design.
Wilfulness and malice alike import intent. . . . [Its]
characteristic element is the design to injure either actu-
ally entertained or to be implied from the conduct and
circumstances.’’ (Internal quotation marks omitted.)
Markey v. Santangelo, supra, 195 Conn. 78. ‘‘[T]hat the
act resulting in the injury was intentional in the sense
that it was the voluntary action of the person involved’’
is insufficient to constitute a wilful or malicious injury;
instead, ‘‘[n]ot only the action producing the injury but
the resulting injury must be intentional.’’ (Internal quo-
tation marks omitted.) Alteiri v. Colasso, supra, 168
Conn. 333. ‘‘It is not necessary that the precise injury
that occurred be the one intended, so long as the injury
was the direct and natural consequences of the intended
act.’’ American National Fire Ins. Co. v. Schuss, 221
Conn. 768, 779, 607 A.2d 418 (1992).2
The defendants argue that there is no genuine issue
of material fact that Samudosky did not intend to injure
Angelina and, therefore, the plaintiff’s claim of inten-
tional assault and battery fails as a matter of law.
It is undisputed that Angelina’s injury took place dur-
ing a scrimmage, or a simulated game; see Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2003); where
she and Samudosky were on opposing teams. Angelina
Deposition, p. 35, ll. 5–13. Prior to Angelina’s being hit
with the ball, Samudosky had the ball and was
defending his end, while Angelina and her team moved
up to challenge, with her in the lead. She and her team-
mates were about six feet away and, although she was
facing him, he was looking down when he kicked the
ball, which then hit her in the face. The plaintiff asserts
that there is an issue of fact as to intent because Samu-
dosky and Angelina were facing each other when he
kicked the ball as hard as he could. Angelina, however,
repeatedly testified that Samudosky was looking down
at the ball when he kicked it and that he kicked it with
a lot of force because he was trying to clear it. She
stated that, because he was in a defensive position, he
would have wanted to get the ball away from his goal,
upon which Angelina and the other girls on her team
were advancing. Finally, she testified that she did not
believe he kicked the ball at her on purpose or intended
to hit her with the ball.
On the basis of the foregoing, no fair and reasonable
jury could find that in kicking the ball, Samudosky
intended to hit Angelina with the ball or injure her. The
plaintiff asserts that there is a factual dispute because
Samudosky testified at his deposition that he does not
recall who kicked the ball that hit Angelina. This does
not raise a genuine issue of material fact because not
only the act producing the injury but the injury itself
must be intentional. See Markey v. Santangelo, supra,
195 Conn. 77; Alteiri v. Colasso, supra, 168 Conn. 333.
Thus, even viewing the evidence in a light most favor-
able to the plaintiff and taking as true that Samudosky
did in fact intentionally kick the ball, the record does
not support a conclusion that his purpose in kicking
the ball was to hit and injure Angelina. In the midst of
a scrimmage, Samudosky kicked the ball hard, away
from his team’s goal, as players on the opposing team,
including Angelina, were moving up to challenge. He
looked down at the ball to kick it, while those players,
including Angelina, were advancing, with Angela in the
lead, kicked the ball, and she was hit in the face. The
only rational inference a fact finder could make is that
which Angelina herself made: that he was trying to clear
the ball, i.e., get the ball away from the goal and from
the members of the opposing team, including Angelina.
The injury suffered by Angelina was not by intentional
design; the only reasonable and logical conclusion that
a jury could reach is that this was a simple accident,
an inherent part of a contact sport. See Jaworski v.
Kiernan, supra, 241 Conn. 406–407. Accordingly, there
is no genuine issue of material fact that Samudosky
did not commit an intentional assault and battery as a
matter of law.
2
Reckless and Wanton
‘‘Wanton misconduct is reckless misconduct. . . . It
is such conduct as indicates a reckless disregard of the
just rights or safety of others or of the consequences of
the action.’’ (Citation omitted; internal quotation marks
omitted.) Markey v. Santangelo, supra, 195 Conn. 78.
Thus, ‘‘[a] wanton assault and battery is one that under
circumstances, evinces a reckless disregard of the con-
sequence of the assaultive act.’’ Carragher v. DiPace,
supra, 2012 WL 6743563, *5. ‘‘[Reckless] conduct tends
to take on the aspect of highly unreasonable conduct,
involving an extreme departure from ordinary care, in
a situation where a high degree of danger is apparent.’’
(Internal quotation marks omitted.) Northrup v. Wit-
kowski, 175 Conn. App. 223, 248, 167 A.3d 443, cert.
granted on other grounds, 327 Conn. 971, 173 A.3d
392 (2017).
In the present case, a fair and reasonable jury could
not conclude that a middle school soccer coach partici-
pating in a scrimmage with his players involved a situa-
tion of such a high degree of danger, such that the
decision to participate would constitute highly unrea-
sonable conduct. See id., 250. The possibility of being
hit in the face with a ball exists as a part of soccer,
regardless of who is participating, and, thus, Samu-
dosky’s participation could not be found to have created
an unreasonable risk of bodily harm. See Carragher v.
DiPace, supra, 2012 WL 6743563, *8. Finally, the fact
that Samudosky kicked the ball with a lot of power,
possibly too hard, cannot reasonably be characterized
as anything more than mere thoughtlessness or inadver-
tence, which, as a matter of law, is not reckless conduct.
See Northrup v. Witkowski, supra, 175 Conn. App. 248.
Accordingly, there is no genuine issue of material fact
that Samudosky did not commit a wanton and reckless
assault and battery.
Samudosky is therefore entitled to judgment as a
matter of law as to the assault and battery claim in
count one.
B
Intentional Infliction of Emotional Distress
‘‘In order for the plaintiff to prevail in a case for
liability under . . . [intentional infliction of emotional
distress], four elements must be established. It must be
shown: (1) that the actor intended to inflict emotional
distress or that he knew or should have known that
emotional distress was the likely result of his conduct;
(2) that the conduct was extreme and outrageous; (3)
that the defendant’s conduct was the cause of the plain-
tiff’s distress; and (4) that the emotional distress sus-
tained by the plaintiff was severe. . . . Whether a
defendant’s conduct is sufficient to satisfy the require-
ment that it be extreme and outrageous is initially a
question for the court to determine. . . . Only where
reasonable minds disagree does it become an issue for
the jury.’’ (Citations omitted; internal quotation marks
omitted.) Appleton v. Board of Education, 254 Conn.
205, 210, 757 A.2d 1059 (2000). ‘‘Liability for intentional
infliction of emotional distress requires conduct that
exceeds all bounds usually tolerated by decent society
. . . . Liability has been found only where the conduct
has been so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case
is one in which the recitation of the facts to an average
member of the community would arouse his resentment
against the actor, and lead him to exclaim, Outrageous!
. . .’’ (Internal quotation marks omitted.) Geiger v.
Carey, Superior Court, judicial district of Litchfield,
Docket No. CV-XX-XXXXXXX-S (February 25, 2015)
(reprinted at 170 Conn. App. 462, 497, 154 A.3d 1119),
aff’d, 170 Conn. 459, 154 A.3d 1093 (2017).
‘‘[I]n assessing a claim for intentional infliction of
emotional distress, the court performs a gatekeeping
function. In this capacity, the role of the court is to
determine whether the allegations of a complaint, coun-
terclaim or cross complaint set forth behaviors that
a reasonable fact finder could find to be extreme or
outrageous. In exercising this responsibility, the court is
not [fact-finding], but rather it is making an assessment
whether, as a matter of law, the alleged behavior fits
the criteria required to establish a claim premised on
intentional infliction of emotional distress.’’ (Internal
quotation marks omitted.) Gagnon v. Housatonic Val-
ley Tourism District Commission, 92 Conn. App. 835,
847, 888 A.2d 104 (2006).
The defendants move for summary judgment as to
the third count of the complaint alleging intentional
infliction of emotional distress on the grounds that (1)
Samudosky’s conduct was not extreme and outrageous,
and (2) Angelina did not suffer severe emotional dis-
tress. The plaintiff contends that there is a genuine
issue of material fact as to whether his conduct was
extreme and outrageous.
In the present case, the plaintiff’s allegations do not,
as a matter of law, rise to the level of outrageousness
required to sustain a claim of intentional infliction of
emotional distress. A coach participating in a scrim-
mage with his players is not patently unreasonable, let
alone so atrocious as to go beyond all bounds usually
tolerated by a society. See Appleton v. Board of Educa-
tion, supra, 254 Conn. 211. Samudosky’s act of kicking
the ball, even if too hard given the size discrepancy
between him and his players, cannot be deemed so
extreme in degree as to render it intolerable. ‘‘The stan-
dard for extreme and outrageous behavior has histori-
cally been construed very strictly’’; Marquez v. Housing
Authority, Docket No. CV-XX-XXXXXXX-S, 2013 WL
6916760, *5 (Conn. Super. December 3, 2013) (Hon.
Alfred J. Jennings, Jr., judge trial referee); and it has
been said that ‘‘[t]his tort must be strictly policed to
avoid turning ordinary life and its insults and ignorant
behavior into an endless and uncontrollable pool for
litigation.’’ (Internal quotation marks omitted.) Brem-
mer-McLain v. New London, Docket No. CV-11-
5014142-S, 2012 WL 2477921, *12 (Conn. Super. June 1,
2012) (Devine, J.), aff’d, 143 Conn. App. 904, 69 A.3d
351 (2013). To deem the conduct alleged to be extreme
and outrageous, the standard would have to be con-
strued much more broadly than our courts, including
appellate courts, have done.
Similarly, the allegation regarding Samudosky evalu-
ating Angelina despite not being a medical professional
and allowing her to continue to play cannot be said to
be extreme and outrageous. This was not an exceptional
incident; as soccer is a contact sport, being hit with the
ball is a risk every time soccer is played. See Jaworski
v. Kiernan, supra, 241 Conn. 406–407. Additionally, it
was not unreasonable of Samudosky to determine that
Angelina was fine and okay to keep playing; although
she had a bloody nose, it lasted only about five to ten
minutes; when asked how she felt and if she thought
she could play, she told Samudosky that she had a
headache but thought she could play; she was able to
walk from the indoor gym to the field where practice
was finished; and she did not ask not to play. Finally,
mere errors in judgment do not, as a matter of law, rise
to the level of extreme and outrageous conduct. See
Appleton v. Board of Education, supra, 254 Conn. 210.
Samudosky is thus entitled to summary judgment on
this count on the ground that his conduct was not
extreme and outrageous.
Furthermore, the claim of intentional infliction of
emotional distress also fails because there is no genuine
issue of material fact that Angelina did not suffer severe
emotional distress. The distress necessary to sustain a
claim of intentional infliction of emotional distress has
been defined simply, but clearly, as ‘‘mental distress of a
very serious kind.’’ (Internal quotation marks omitted.)
Gillians v. Vivanco-Small, 128 Conn. App. 207, 212, 15
A.3d 1200, cert. denied, 301 Conn. 933, 23 A.3d 726
(2011). Our appellate courts, however, have never
adopted a bright-line test for determining what kinds
of mental distress are sufficiently serious to sustain a
claim of intentional infliction of emotional distress, but
our trial courts have consistently used the standard set
forth in the Restatement. See Civitella v. Pop Warner
Football, Superior Court, judicial district of Ansonia-
Milford, Docket No. CV-XX-XXXXXXX-S (September 5,
2012) (Matasavage, J.) (54 Conn. L. Rptr. 641, 643);
Stapleton v. Monro Muffler, Inc., Docket No. CV-98-
0580365-S, 2003 WL 462566, *5 (Conn. Super. February
3, 2003) (Sheldon, J.).
Comment (j) to the Restatement (Second) of Torts,
§ 46, provides in relevant part: ‘‘The law intervenes only
where the distress inflicted is so severe that no reason-
able [person] could be expected to endure it. The inten-
sity and the duration of the distress are factors to be
considered in determining its severity.’’ 1 Restatement
(Second), supra, § 46, comment (j), pp. 77–78. Emo-
tional distress is unlikely to be considered severe in
the absence of treatment, medical, psychological, or
otherwise. See, e.g., Civitella v. Pop Warner Football,
supra, 54 Conn. L. Rptr. 643–44; Stapleton v. Monro
Muffler, Inc., supra, 2003 WL 462566, *4; cf. Perez-Dick-
son v. Bridgeport, 304 Conn. 483, 529, 43 A.3d 69 (2012)
(‘‘[T]he only evidence of severe emotional distress that
the plaintiff presented with respect to this conduct is
that she became frightened and choked up upon being
told that her career might be in jeopardy. There was
no evidence that the plaintiff was in distress for an
extended period or that she sought medical treat-
ment.’’). Mere embarrassment, humiliation and hurt
feelings do not constitute severe emotional distress.
See Barry v. Posi-Seal International, Inc., 36 Conn.
App. 1, 20 n.17, 647 A.2d 1031 (1994), remanded for
further consideration, 235 Conn. 901, 664 A.2d 1124
(1995); Stapleton v. Monro Muffler, Inc., supra, *6
(‘‘common feelings and emotions, such as hurt feelings,
embarrassment and humiliation, are things we all expe-
rience in our daily lives, and thus things we must learn
to live with’’).
In the present case, the evidence submitted demon-
strates that Angelina did not suffer severe emotional
distress. Initially, it is noted that the consequences
described—missing school, having to repeat a grade,
not being able to participate with friends and family
because of headaches, or not being able to finish the
soccer season or try out for basketball the year the
incident took place—are a result of her concussion
rather than emotional distress. Nevertheless, Angelina
testified that she suffered emotional distress from hav-
ing to repeat the seventh grade, suffering embar-
rassment from being one year behind her friends and
older than the other students in her grade. She testified
that she does not like talking about her situation and
is uncomfortable with it. The plaintiff similarly attested
in her affidavit that Angelina has suffered embar-
rassment and humiliation at having to repeat the sev-
enth grade. Notably, Angelina testified that she has not
sought any treatment for her emotional distress and
does not plan to. Although this distress is arguably long-
term in the sense that she will continue to be older
than her classmates throughout the remainder of high
school, it cannot be said to be of the type that is so
intolerable or unbearable that no reasonable person
could be expected to endure. To the contrary,
Angelina’s embarrassment is nothing more than a
‘‘degree of transient and trivial emotional distress,
which is a part of the price of living among people.’’
(Internal quotation marks omitted.) Civitella v. Pop
Warner Football, supra, 54 Conn. L. Rptr. 644. Samu-
dosky is thus entitled to summary judgment on this
count on the ground that Angelina did not suffer severe
emotional distress.
C
Recklessness
‘‘Recklessness requires a conscious choice of a
course of action either with knowledge of the serious
danger to others involved in it or with knowledge of
facts which would disclose this danger to any reason-
able man, and the actor must recognize that his conduct
involves a risk substantially greater . . . than that
which is necessary to make his conduct negligent. . . .
More recently, we have described recklessness as a
state of consciousness with reference to the conse-
quences of one’s acts. . . . It is more than negligence,
more than gross negligence. . . . The state of mind
amounting to recklessness may be inferred from con-
duct. But, in order to infer it, there must be something
more than a failure to exercise a reasonable degree
of watchfulness to avoid danger to others or to take
reasonable precautions to avoid injury to them. . . .
Wanton misconduct is reckless misconduct. . . . It is
such conduct as indicates a reckless disregard of the
just rights or safety of others or of the consequences
of the action.’’ (Internal quotation marks omitted.) Doe
v. Boy Scouts of America Corp., 323 Conn. 303, 330,
147 A.3d 104 (2016). ‘‘Reckless conduct must be more
than any mere mistake resulting from inexperience,
excitement, or confusion, and more than mere thought-
lessness or inadvertence, or simply inattention . . . or
even an intentional omission to perform a statutory
duty . . . . [In sum, reckless] conduct tends to take
on the aspect of highly unreasonable conduct, involving
an extreme departure from ordinary care, in a situation
where a high degree of danger is apparent.’’ (Citation
omitted; internal quotation marks omitted.) Northrup
v. Witkowski, supra, 175 Conn. App. 248.
In count six, the plaintiff asserts a claim of reckless-
ness against all of the defendants for their alleged con-
duct relating to the incident and Angelina’s injury. The
defendants argue that the recklessness claim fails as a
matter of law and that their allegedly reckless conduct
did not cause Angelina’s injuries.
In the present case, the plaintiff has simply incorpo-
rated her allegations of negligence in count five into the
recklessness counts and then adds the legal conclusion
that the defendants wantonly, wilfully, or recklessly
failed to inform the plaintiff of Angelina’s injuries in
disregard for her safety, health and well-being. It has
been said that ‘‘[m]erely using the term ‘recklessness’
to describe conduct previously alleged as negligence is
insufficient as a matter of law.’’ Angiolillo v. Buck-
miller, 102 Conn. App. 697, 705, 927 A.2d 312, cert.
denied, 284 Conn. 927, 934 A.2d 243 (2007); see id.
(affirming summary judgment where plaintiffs’ ‘‘simply
incorporated their allegations of negligence and labeled
the conduct recklessness’’). Furthermore, the plaintiff’s
allegations, when viewed in light of the evidence on
the record, even when taken in a light most favorable
to her, cannot be characterized as rising above mere
negligence. The evidence does not demonstrate that the
incident of Angelina’s being hit with the ball involved
a situation of such a high degree of danger that allowing
Angelina to continue practice or failing to immediately
contact her parents constituted the sort of highly unrea-
sonable conduct or ‘‘wanton disregard that is the hall-
mark of reckless behavior.’’ Northrup v. Witkowski,
supra, 175 Conn. App. 250. On the basis of the evidence
submitted, the defendants’ conduct cannot reasonably
be characterized as anything more than mere thought-
lessness or inadvertence, which, as a matter of law,
is not reckless conduct. See id., 248. Accordingly, the
defendants are entitled to summary judgment as to the
plaintiff’s recklessness claim.3
CONCLUSION
For the foregoing reasons, the court grants the defen-
dants’ motion for summary judgment as to all counts
of the plaintiff’s complaint.
* Affirmed. Maselli v. Regional School District No. 10, 198 Conn. App.
, A.3d (2020).
1
Theresa Maselli will be referred to as the plaintiff and Angelina Maselli
as Angelina throughout this memorandum of decision.
2
‘‘The only rational conclusion is that the defendant intended . . . to
bring about a result, namely, some burning of that building or its contents,
that invaded the interests of the synagogue in a way that the law forbids.
. . . It is of no moment that he may not have specifically intended the Torah
scrolls to burn, or that he may not have specifically intended that the building
be substantially damaged by fire.’’ (Citations omitted.) American National
Fire Ins. Co. v. Schuss, supra, 221 Conn. 778–79.
3
Because the court finds that the negligence claims are barred by govern-
mental immunity, and that the plaintiff’s assault and battery, intentional
infliction of emotional distress and recklessness claims fail as a matter of
law, the court does not address alternative arguments in favor of sum-
mary judgment.