Kramer v. Board of Education, Bethany, No. 27 66 62 (Aug. 15, 1990)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#118) The revised complaint (#107) contains two counts. The CT Page 1286 first count is addressed to the Board of Education, Town of Bethany. The second count is directed to a teacher (Mozealous).

The complaint alleges in substance that the plaintiff, a student at Bethany Community School, fell during a gym class striking his head on an unpadded and uncovered concrete wall of the gymnasium.

A fair reading of the first count suggests that it is directed to the Board of Education. Paragraph 7 alleges that the Board itself was negligent in various ways. A nuisance is not alleged nor is there any reference to the Board's involvement under 10-235 Connecticut General Statutes.

The plaintiff has filed no counter-affidavit or documentary evidence placing in issue the fact the plaintiff, a student, was injured during the course of a gym class and/or that the Board of Education was engaged in any activity other than that of carrying out its public purposes. Under the circumstances the maintenance of the gym wherein a class was in progress leads to but one conclusion, namely, that of the exercise of governmental activity for which the Board of Education may not be liable in negligence. Couture v. Board of Education, 6 Conn. App. 309, 313. As noted above there are no allegations supportive of a claim of nuisance either public or private, nor is there any reference in the pleadings to 10-235 Connecticut General Statutes. Further, there is no assertion of a private duty which was violated by the Board. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180.

The Motion For Summary Judgment as to the Board of Education is granted.

As to the second count the employee (teacher) seemingly is immune from liability for negligence unless the act is ministerial. Whether the acts complained of are governmental or ministerial is a factual question which depends upon nature of act complained of. Gordon v. Bridgeport Housing Authority, supra, p. 165 et seq.; Gauvin v. New Haven, 187 Conn. 180, 186.

Motion for Summary Judgment as to the second count is denied.

JOHN C. FLANAGAN, Judge