DocketNumber: No. CV 960566449 CT Page 3743
Citation Numbers: 1997 Conn. Super. Ct. 3742, 19 Conn. L. Rptr. 345
Judges: WAGNER, JUDGE TRIAL REFEREE
Filed Date: 4/15/1997
Status: Non-Precedential
Modified Date: 4/18/2021
The plaintiff, Edwin DeLeon, Jr., through his mother and next friend, Luz Soto, alleges the following facts. While participating in a wrestling program at the Fox Middle School in Hartford on December 13, 1994, the plaintiff sustained injuries when the defendant, Delorm, dropped another student on top of him while demonstrating a wrestling move. DeLeon was kicked by the other student in his abdomen and his injuries were exacerbated when the defendant, Delorm, and another student moved him without consulting a medical professional.
Count one of the complaint is against Delorm, alleging that he was negligent. Count two alleges negligence against Davis, as superintendent, for failing to: (1) train Delorm in the proper way to conduct a physical education program; (2) provide adequate staff to supervise and monitor participants in the wrestling program; (3) promulgate rules and policies regarding conducting organized student wrestling activities in a safe manner; and (4) insure that appropriate medical professionals were available during the wrestling program. In count three, the plaintiff claims indemnity from Hartford for the negligent acts of the city's employees, as alleged in counts one and two, pursuant to General Statutes §
On January 15, 1997, the defendants moved to strike all three counts of the complaint on the ground that the actions of the individual defendants are protected by the doctrine of government immunity, and count three should also fail because indemnification is derivative of the claims set forth in counts CT Page 3744 one and two, which fail to state a claim. The plaintiff claims that the determination of whether the acts complained of are discretionary or ministerial is a question of fact, which is inappropriate for the court to decide on a motion to strike.
"A municipality's potential liability for its tortious acts is limited by the common law principle of government immunity . . . Governmental immunity, however, is not a blanket protection for all. A municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts." Heigl v. Board of Education, supra,
In the present case, while the alleged acts of the individual CT Page 3745 defendants appear to be discretionary the circumstances are such that the actions of Delorm complained of were likely to subject an identifiable person like the plaintiff to harm.
In count one, the plaintiff alleges that the defendant, Delorm, failed to supervise the students; failed to position the students to protect them from harm while he demonstrated the wrestling maneuver; failed to demonstrate the maneuver in a safe or prudent manner; and moved the plaintiff after he was injured, which exacerbated his injuries.
Viewed in their most favorable light, these allegations suggest that the type of accident which occurred was foreseeable. Furthermore, all students participating in the wrestling program were members of a foreseeable class of persons to whom both of the individual defendants owed a duty of care. See Sestito v.Groton,
General Statutes §
Since both Hartford and the Board have a duty to indemnify their employees, and this duty to indemnify is derivative of the CT Page 3746 claims in counts one and two against the employees, Delorm and Davis, it follows that if counts one and two are sufficient, count three is also sufficient.
Motion to strike all three counts is denied.
WAGNER, J.T.R.