Dissent - Osborn v. Waterbury

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OSBORN v. WATERBURY—DISSENT
PRESCOTT, J., dissenting. I agree with the majority
that the trial court’s findings regarding the number of
children on the playground at the time the minor plain-
tiff, Tatayana Osborn, was injured are clearly errone-
ous. I disagree, however, that this improper factual find-
ing entitles the defendants, the city of Waterbury and
the Waterbury Board of Education, to a new trial.
Accordingly, I respectfully dissent.
I
The majority more than adequately sets forth the
relevant facts and procedural history of this case, and
I see no need to repeat them here. It is important to
emphasize, however, that our Supreme Court, in a four
to three decision, reversed our prior determination that
the defendants were entitled to judgment because ‘‘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.’’ Osborn v.
Waterbury, 181 Conn. App. 239, 246, 185 A.3d 675(2018), rev’d, 333 Conn. 816, 220 A.3d 1 (2019).
In reaching the conclusion that expert testimony on
the number of teachers necessary to ensure the safety
of the children on the playground was not required in
this case, our Supreme Court provided two principal
rationales. First, it concluded that expert testimony was
not required because ‘‘a determination of adequate
supervision of children is common knowledge, based
on everyday life.’’ Osborn v. Waterbury, 333 Conn. 816,
831, 220 A.3d 1 (2019). Thus, in the Supreme Court’s
view, the issue of whether the children were adequately
supervised could be decided reliably by the fact finder
without the assistance of expert testimony. Id.Importantly, our Supreme Court offered a second and
equally determinative rationale: ‘‘[W]e disagree with the
Appellate Court that the plaintiffs’ claim required the
fact finder to determine the standard of care regarding
the number of supervisors needed to ensure the safety
of elementary school students on a playground . . . .
The 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. Indeed,
even if there had been expert testimony regarding the
desired ratio of staff to children and the facts demon-
strated that the school met that ratio, the fact finder
still may have determined that the supervision was not
adequate because adequacy is not based just on num-
bers, and nothing in the complaint limited the plaintiffs’
claim to a mere numerical calculation between the num-
ber of students and the number of adults. This was an
inadequate supervision case.’’ (Citation omitted;
emphasis added; footnote omitted; internal quotation
marks omitted.) Id., 831–32.
In sum, the Supreme Court reversed this court’s
determination that the plaintiffs’ case failed as a matter
of law without expert testimony on the number of teach-
ers necessary to supervise adequately the children
because (1) the question of adequate supervision was
a matter of lay knowledge, and (2) the plaintiffs’ 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. As to the second
rationale, the Supreme Court determined, in essence,
that the children could have been inadequately super-
vised even if enough teachers were present for the
number of children on the playground at that time
because, for example, the teachers present may not
have been keeping a sufficient lookout and thus failed
to exercise due care.
In my view, the Supreme Court’s determination in
this regard is the law of the case and is fully binding
on us. Accordingly, even though I agree with the major-
ity that the trial court’s factual finding regarding the
ratio of teachers to students present on the playground
is clearly erroneous, that error is not fatal to the plain-
tiff’s case because, in our Supreme Court’s view, the
success of the case was not dependent on that finding.
Although the majority opinion acknowledges this
aspect of the Supreme Court’s decision, it nonetheless
concludes that this error was harmful because it was
‘‘inextricably intertwined’’ with the court’s ultimate con-
clusion that the defendants were negligent. I am
inclined to agree with the majority that a reasonable
reading of the trial court’s short and opaque memoran-
dum of decision, as well as its subsequent articulation,
supports such a conclusion. As an intermediate appel-
late body, however, I am of the view that we are bound
by the language in the Supreme Court’s opinion that
‘‘the fact finder still may have determined that the
supervision was not adequate because adequacy is not
based just on numbers . . . .’’ (Emphasis added.)
Osborn v. Waterbury, supra, 333 Conn. 832. In making
this determination, our Supreme Court reviewed the
trial court’s memorandum of decision and subsequent
articulation and concluded that the trial court’s ultimate
conclusion that the defendants were negligent was
premised, at least in part, on a conclusion that the
children on the playground were inadequately super-
vised regardless of the actual ratio of teachers to chil-
dren. If our Supreme Court was of the view that the
ratio of teachers to children was critical to the trial
court’s determination of negligence, then the Supreme
Court would not have relied upon its second rationale
as to why expert testimony was not required in the
present case.
Moreover, the dissenting opinion of Justice Kahn,
which was joined by two other justices, states that,
‘‘in the present case, the sole basis of the trial court’s
conclusion that the defendants’ supervision of the chil-
dren was negligent was the supervisor to student ratio
. . . .’’ Id., 845. The Supreme Court’s majority opinion
directly and explicitly rejects that view: ‘‘The dissent
is premised on an interpretation of the trial court record
with which we fundamentally disagree. The dissent
repeatedly asserts that the sole basis of the trial court’s
conclusion that the defendants’ supervision of the chil-
dren was negligent was the supervisor to student ratio
. . . . This conclusion ignores the articulation of the
trial court 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. This articulation makes
clear that the supervisor to student ratio was not the
sole basis of the trial court’s conclusion that the defen-
dants were negligent but that, regardless of the supervi-
sor to student ratio, the defendants did not exercise
proper control over the students.’’ (Emphasis omitted;
internal quotation marks omitted.) Id., 823 n.4.
It is immaterial whether I agree with the majority’s
characterization of the trial court’s decision. I am bound
by it, and therefore must conclude that the trial court’s
factually erroneous determination regarding the ratio
of teachers to students is harmless error. Accordingly,
I dissent from the majority’s conclusion that the defen-
dants are entitled to a new trial on that basis.
II
In light of my conclusion set forth in part I of this
dissent, I am obligated to address the defendants’
remaining claims on appeal to determine whether they
are entitled to any relief on the basis of those claims.
Those claims are whether the trial court improperly (1)
rejected the defendants’ special defense of governmen-
tal immunity for discretionary acts and (2) awarded
damages for future medical expenses in the absence of
any evidence that such expenses were reasonably likely
to be incurred. I conclude that the defendants are not
entitled to prevail on either of these claims.
A
The defendants claim that the trial court improperly
rejected their claim that they were entitled to govern-
mental immunity under the circumstances of this case.
The record, however, is inadequate to review this claim
and any further articulation by the trial court is not
possible because Judge Sheedy, the trial judge in this
matter, is fully retired from the bench.
The following procedural history is relevant to this
claim. The remaining defendants in this case raised
governmental immunity as a special defense. During
their closing argument, they contended that the evi-
dence submitted at trial entitled them to a judgment
on that basis. The trial court’s memorandum of decision
is silent with respect to this special defense. Import-
antly, although the defendants sought articulation of
the trial court’s decision on other grounds, they did not
ask the trial court to explain whether it had considered
this defense, and, if it had done so, the factual basis
for having rejected it.
‘‘It is axiomatic that the appellant bears the burden
of providing this court with a record adequate to review
his claim of error. . . . Furthermore, a claim of error
cannot be predicated on an assumption that the trial
court acted erroneously. . . . Accordingly, our appel-
late courts often have recited, in a variety of contexts,
that, in the face of an ambiguous or incomplete record,
we will presume, in the absence of an articulation, a
trial court acted correctly, meaning that it undertook
a proper analysis of the law and made whatever findings
of the facts were necessary.’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.) Zanie-
wski v. Zaniewski, 190 Conn. App. 386, 396, 210 A.3d
620 (2019); see also Bell Food Services, Inc. v. Sherba-
cow, 217 Conn. 476, 482, 586 A.2d 1157 (1991) (‘‘[if] an
appellant has failed to avail himself of the full panoply
of articulation and review procedures, and absent some
indication to the contrary, we ordinarily read a record
to support, rather than to contradict, a trial court’s
judgment’’).
In the present case, the defendants failed to avail
themselves of the opportunity to seek articulation from
the trial court on the issue of governmental immunity
despite having filed a motion for articulation on other
grounds. Thus, this case is unlike Zaniewski v. Zaniew-
ski, supra, 190 Conn. App. 397–98, in which we con-
cluded that the appellant’s failure to seek articulation
was excused by the immediate retirement of the trial
judge in that case following the issuance of his decision.
In this case, the defendants enjoyed an opportunity to
seek articulation but did not seek to remedy an obvious
lacuna in the trial court’s decision. Moreover, in light
of Judge Sheedy’s retirement from the bench, we are
unable to exercise our authority, pursuant to Practice
Book §§ 60-5 and 61-10, to order sua sponte articulation
on this subject. Accordingly, I conclude that the defen-
dants are not entitled to relief on this claim.
B
I turn next to the defendants’ remaining claim on
appeal. The defendants assert that the trial court
improperly awarded the plaintiffs damages for future
medical expenses in the absence of any evidence that
such expenses were reasonably likely to be incurred.
In my view, the factual premise of this claim is incorrect
because I do not read the trial court’s memorandum of
decision as having awarded damages for future medical
expenses. Moreover, to the extent that the trial court’s
decision is ambiguous in this regard, the defendants
failed to seek articulation or clarification to resolve any
ambiguity in the court’s decision.
The following facts and procedural history are rele-
vant to this claim. At trial, the plaintiffs offered, and
the court admitted, evidence of the minor plaintiff’s
medical expenses and her pain and suffering that she
endured as a result of her injuries. The plaintiffs did
not offer evidence of any future medical expenses that
she was likely to incur.
The trial court, in its memorandum of decision, made
the following findings regarding the minor plaintiff’s
injuries and resulting economic and noneconomic dam-
ages. ‘‘On the [day of the incident], [the minor plaintiff]
found herself 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; she experienced post-trau-
matic headaches for a sustained period of time there-
after, but the most serious effect of this schoolyard
assault was its lingering effect on [her] emerging per-
sonality and self-image. . . .
‘‘At trial, it was clear the minor [p]laintiff was con-
scious of her facial scarring and that she considered that
scarring to be her primary—perhaps ‘only’—sequela of
the incident. In point of fact, the scars have significantly
diminished and she continues to present as a lovely
appearing young woman. A review of the exhibits has
persuaded the court the most serious of her injuries
is the effect the incident has had on her behavioral
presentation. Since the occurrence, the [minor] [p]lain-
tiff has demonstrated unpleasant—even rude—behav-
ior in the presence of family and other caregivers. She
‘acts out’ and the suggestion is strong that she presents
at school as unfriendly—perhaps even hostile. It is this
court’s view the [minor] [p]laintiff would benefit from
additional behavioral counseling and the substantial
award here determined is intended to encourage contin-
ued therapy and occupational training.
‘‘[The plaintiffs’] counsel did not provide the court a
listing of the medical expenses incurred. The court has
carefully reviewed all exhibits and has concluded medi-
cal expenses were $7090.47. . . . No evidence was
offered to support an ongoing need for continued ther-
apy in any form though the award here determined will
permit the same should the family determine future
treatment is desirable. The court does not award spe-
cific damages for permanency in the absence of medical
testimony supportive of the same.
‘‘Judgment enters . . . in favor of the named [p]lain-
tiffs as against the remaining [d]efendants in the total
amount of sixty-seven thousand ninety dollars and
forty-seven cents ($67,090.47).’’ (Footnote omitted.)
Although, as noted previously, the defendants moved
for articulation on other grounds, they did not seek
articulation on the award of damages, including
whether the $60,000 portion of the judgment was
awarded for pain and suffering or for future medical
expenses. The trial court’s subsequent articulation did
not discuss the manner in which it calculated damages.
The following standard of review governs this claim.
‘‘The construction of a judgment is a question of law
for the court. . . . As a general rule, judgments are
to be construed in the same fashion as other written
instruments. . . . The determinative factor is the inten-
tion of the court as gathered from all parts of the judg-
ment. . . . The interpretation of a judgment may
involve the circumstances surrounding the making of
the judgment. . . . Effect must be given to that which
is clearly implied as well as to that which is expressed.
. . . The judgment should admit of a consistent con-
struction as a whole.’’ (Emphasis omitted; internal quo-
tation marks omitted.) Cimmino v. Marcoccia, 332
Conn. 510, 522, 211 A.3d 1013 (2019). With respect to
an ambiguous decision, and in the absence of a motion
for articulation, we assume the trial court acted prop-
erly. See, e.g., Caciopoli v. Howell, 124 Conn. App. 273,
280, 5 A.3d 509 (2010).
With these principles in mind, and for the following
reasons, I read the trial court’s memorandum of deci-
sion as having awarded the plaintiffs $60,000 for non-
economic damages, and not as economic damages for
future medical expenses. First, to construe the court’s
decision as having awarded the $60,000 for future medi-
cal expenses would mean it awarded the plaintiffs noth-
ing for the minor plaintiff’s pain and suffering despite
her significant physical injuries. Such a ruling would be
highly unusual, of dubious validity, and seems directly
contradicted by the fact that the court mentions the
minor plaintiff’s headaches in the second paragraph of
its decision. The court also makes clear in its decision
that the minor plaintiff is suffering emotionally from
the incident.
Second, the court arguably recognizes that there was
an insufficient factual basis to award future economic
damages (and damages for permanency) by stating in
its memorandum of decision that ‘‘[n]o evidence was
offered to support an ongoing need for continued ther-
apy in any form though the award here will permit the
same should the family determine future treatment is
desirable.’’ Construing the court’s decision as a whole,
it appears to me that the court’s intent was to recognize
that, although it did not have a basis to award economic
damages for future medical costs, the family was free
to use money awarded for pain and suffering, if neces-
sary, to acquire mental health services to ameliorate
the behaviors and symptoms the minor plaintiff had
been exhibiting since the assault but that had been
left untreated.
Third, the formal, amended judgment issued in con-
junction with the trial court’s memorandum of decision
provides that the ‘‘plaintiff . . . sustained damages in
the amount of $7090.47 in economic damages and
$60,000 award in noneconomic damages.’’ The record
supports the court’s conclusion that the plaintiffs had
incurred $7090.47 in prior medical expenses.
Future medical expenses simply do not fall in the
category of noneconomic damages. ‘‘Economic dam-
ages are monies awarded as compensation for monetary
losses and expenses which the plaintiff has incurred,
or is reasonably likely to incur in the future, as a result
of the defendant’s negligence.’’ Connecticut Civil Jury
Instructions (2012) 3.4-1, available at http://jud.ct.gov/
JI/Civil/Civil.pdf (last visited May 14, 2020); see also
Duncan v. Mill Management Co., 308 Conn. 1, 34, 60
A.3d 222 (2013).
At best, the court’s decision on this question is ambig-
uous. The defendants did not seek articulation on this
point, and Judge Sheedy, being fully retired, is unavail-
able to take additional steps to articulate. Accordingly,
as I previously recognized with respect to the govern-
mental immunity issue, we must presume that the court
acted properly, and, therefore, the defendants cannot
prevail on this claim.
For these reasons, I would affirm the judgment of
the trial court and respectfully dissent from the decision
of the majority to reverse the judgment and remand the
case for a new trial.