A Connecticut state court judge has granted summary judgment to a school district, on grounds of governmental immunity, after the district was sued by the mother of a middle school soccer player, who suffered a concussion after her coach accidently struck her in the head with a soccer ball.
The incident took place on Oct. 28, 2013 at Har-Bur Middle School in Burlington, Connecticut. Angelina Maselli, who was a member of the school’s soccer team, was participating in a mandatory soccer practice supervised by her coach, Robert Samudosky (Samudosky). During the practice, the team engaged in a scrimmage inside the gymnasium and Maselli participated as a member of one of the teams. At some point during the scrimmage, Samudosky kicked a ball that hit Maselli in the face, causing a concussion.
Samudosky did not notify a school nurse, paramedics, or Angelina’s parents and despite not being a doctor, Samudosky 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 July 13, 2016, the plaintiff filed an amended complaint asserting six claims against the defendants: Regional School District #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 were against Samudosky only and centered on his alleged negligence. Counts five and six were against all defendants.
On Aug. 25, 2017, the defendants moved for summary judgment as to all counts of the plaintiff’s complaint 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 for 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.
The court began its analysis by noting that under 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). It did note that there are exceptions, but the bar is high for a plaintiff to pierce that immunity.
It then shifted to the negligence claims against Samudosky. “In counts three and four, the plaintiff asserts claims for negligent infliction of emotional distress and negligence against Samudosky, respectively. The defendants move for summary judgment as to these negligence claims on the ground that they are barred by governmental immunity and 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 the plaintiff was not an identified individual.
“In a signed and sworn affidavit, Alan 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 p.m. 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 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.
The court continued: “In Jahn v. Bd. of Educ. of Monroe, 152 Conn. App. 652, 99 A.3d 1230 (2014), the plaintiff 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: ‘While it may be true that the plaintiff 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 a foreseeable class of school children. Id., 667-68.
“Similarly, a student playing in a pick-up basketball game during a senior class picnic did not qualify as an identifiable person. Costa v. Plainville Board of Education, 175 Conn.App. 402, 408-09, 167 A.3d 1152, cert. denied, 327 Conn. 961, 172 A.3d 801 (2017). In Costa, the court stated: ‘Here, it is undisputed that Ricky Costa was not required to attend the senior picnic, but did so voluntarily. He also voluntarily participated in the pick-up basketball game in which he was injured. We agree with the trial court that Ricky Costa’s voluntary participation did not grant him the status of an identifiable person entitled to protection by school authorities.’ Id., 409. In a case outside the school context, our Supreme Court has also recently re-affirmed the principle that one whose presence and/or participation is voluntary and not compelled by statute or other law, is not an identifiable person. St. Pierre v. Plainfield, supra, 483. ‘In the present case, the plaintiff was in no way compelled to attend the aqua therapy sessions provided by Eastern. Instead, he voluntarily decided to use Eastern’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 plaintiff’s 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 voluntary. See Jahn v. Board of Education, supra, 152 Conn.App. at 667. Angelina chose to participate in the soccer team, just like the plaintiff in Jahn chose to participate in the swim team and Ricky Costa chose to attend the senior picnic and participate in the pick-up basketball game. Accordingly, Angelina is not an identified person for purposes of the exception. Further, even if Angelina was considered identifiable in the sense that Samudosky knew her identity and 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’). 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 governmental immunity.”
In count five, the plaintiff alleged 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.” Similar to the first four, the court found that the plaintiff failed to demonstrate an exception that would undermine the defendant’s governmental immunity argument.
The remaining counts also failed, leading to the full dismissal of the plaintiff’s claim.
Angelina Maselli et al. v. Regional School District #10; Super. Ct. Conn.; HHDCV156062402S, 2018 Conn. Super. LEXIS 1223; 6/11/18
