Durrant v. BD. OF EDUC. OF CITY OF HARTFORD
Durrant v. BD. OF EDUC. OF CITY OF HARTFORD
Opinion of the Court
Opinion
The plaintiff, Sharon Durrant, appealed from the judgment of the trial court rendered following the
The Appellate Court opinion sets forth the following undisputed facts and procedural history pertinent to our discussion of the issue on appeal. “In her complaint and subsequent affidavit in response to the motion for summary judgment, the plaintiff alleged that on September 14, 2001, at approximately 4 p.m., she arrived at West Middle School [in Hartford (school)] to pick up her six year old son from an after school day care and homework study program conducted by the Boys and Girls Club and the school. As she exited the school, the plaintiff slipped and fell due to a puddle of water that had accumulated on the backdoor stairs, sustaining several injuries. The plaintiff claims that the defendants failed to inspect the stairs reasonably, failed to promulgate policies and procedures that required inspection and removal of standing water and failed to warn the plaintiff and others adequately of the dangerous condition on the stairs.
“The defendants denied the allegations of the complaint and raised the special defenses of contributory negligence and the doctrine of governmental immunity, pursuant to § 52-557n and the common law. The plaintiff denied the allegations in the defendants’ answer and the assertion that § 52-557n and the common law barred her claims. The defendants filed a motion for summary judgment, pursuant to Practice Book § 17-49 et seq., on the ground that governmental immunity barred the plaintiffs recovery on her complaint. The plaintiff
“The court granted the defendants’ motion for summary judgment, concluding in its memorandum of decision that it was apparent from the complaint that the omissions alleged in the plaintiffs complaint were discretionary acts, thereby permitting the court to consider the motion for summary judgment pursuant to Segreto v. Bristol, 71 Conn. App. 844, 855, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
“Addressing the plaintiffs claim that her presence at the school was a necessity and, therefore, that she was an identifiable person or a member of a foreseeable class of victims subject to imminent harm, the court found that the plaintiff failed to plead any facts indicat
In deciding that the trial court improperly had concluded that the identifiable person-imminent harm exception to municipal employees’ immunity did not apply to the present case, the Appellate Court majority predicated its decision on several determinations. First, the court determined that the puddle in the stairwell satisfied the imminent harm element of the exception because the allegedly dangerous condition was limited in duration and location. Id., 468. Second, turning to the identifiable person element, the court reasoned that, had the plaintiffs child been injured in the fall, he would have been allowed to maintain an action against a municipality “because, although not legally required to be on the premises after the school day had concluded, the child was legally present on the premises for the after school program by invitation of the defendants. . . . General Statutes § 17b-737. [Accordingly] . . . the six year old student would be in an identifiable class of foreseeable victims had he been the one who was allegedly injured.” Durrant v. Board of Education, supra, 96 Conn. App. 468-69. Building on that reasoning,
Mindful of the well settled standard regarding the scope of our review of a trial court’s decision to render summary judgment,
We begin with the understanding that the question of whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect
“The plaintiff in Burns was a schoolchild who was required by statute to attend the school where he sustained an injury during school hours on an icy courtyard. Burns v. Board of Education, supra, 228 Conn. 650. [This court] decided that the child was one of a class of foreseeable victims to whom the defendant superintendent owed a duty of protection. Id. The defense of governmental immunity did not apply under the circumstances in which parents are statutorily compelled to relinquish protective custody of their children to a school board and its employees. Id., 649-51. Central to the holding in Burns was the statutory requirement that the plaintiff attend school, coupled with his entitle
“In Purzycki v. Fairfield, supra, 244 Conn. 103-104, the minor plaintiff suffered injuries when he was tripped by another student in an unmonitored school hallway. In discussing the applicable exception to governmental immunity, [the court] reiterated that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims. . . . Id., 109. The court concluded that the limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess constituted sufficient evidence for a jury to find imminent harm. Id., 110.” (Citations omitted; emphasis added; internal quotation marks omitted.) Durrant v. Board of Education, supra, 96 Conn. App. 475-77 (Schaller, J., dissenting).
“Finally, in Prescott, [the court] refused the adult plaintiffs invitation to enlarge the category of foreseeable victims, emphasizing that the only class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours. Prescott v. Meriden, supra, 273 Conn. 764. The unsuccessful plaintiff in Prescott, which was decided in 2005, was the parent of a high school student-athlete. Id., 761. The plaintiff, attending his son’s football game as a spectator, was on school grounds after school hours. Id., 761-62. [The court], in applying the Burns doctrine, first concluded that the plaintiff, as the parent of a student, was not entitled to any special consideration in the face of dangerous conditions. Id., 764. More specifically, the court stated that parents are not the intended beneficiaries of any particular duty of care imposed by statute, nor are they legally required
The Appellate Court applied the factors set forth in these cases and made an initial determination from which all else followed. The court first examined whether, “if the child instead of the parent fell while leaving the after school program, the defendants would have been able to invoke the doctrine of governmental immunity.” Id., 468. Rejecting the defendant’s argument that “the student would also be excluded as a foreseeable victim because his attendance at the program was voluntary, not legally required”; id.; the Appellate Court concluded that “[i]t is not a large judicial leap to reason that the six year old student should be allowed to maintain an action against a municipality because, although not legally required to be on the premises after the school day had concluded, the child was legally present on the premises for the after school program by invita
Even if the Appellate Court properly determined that the puddle of water in the staircase had satisfied the imminent harm element of the identifiable person-imminent harm exception because the danger in the present case had been limited in duration; see Burns v. Board of Education, supra, 228 Conn. 650 (danger confined to duration of temporary icy condition in particularly “ ‘treacherous’ ” area of campus); and had been geographically confined; see Purzycki v. Fairfield, supra, 244 Conn. 109-10 (danger confined to particular hallway in which defendants knew that students were permitted to travel unmonitored for one-half hour period each day); the court’s conclusion that the plaintiffs child fell within an identifiable class of foreseeable victims was improper. The Appellate Court failed to recognize the significance of the enactment of § 52-557n as it affected the common-law authority of trial courts to
Section 52-557n, enacted in 1986; see Public Acts 1986, No. 86-338, § 13; specifically delineates circumstances under which municipalities and its employees can be held liable in tort and those under which they will retain the shield of governmental immunity. With respect to the latter, § 52-557n (a) (2) provides in relevant part: “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” Although the statute contains no express exceptions to governmental immunity for discretionary acts, this court has “assume[d], without deciding, that § 52-557n (a) (2) (B) codifies the common law” relating to circumstances in which immunity is abrogated.
Prior to the enactment of § 52-557n, municipalities generally were immune for the discretionary acts of their officials. See Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982). This court has explained the policy rationale for this immunity as follows: “Municipal officials are immunized from liability for negligence
Burns was the first case decided by this court after the enactment of § 52-557n (a) (2) (B) to address the foreseeable victim/imminent harm exception that the court previously had recognized under its common-law authority. Although Burns and its progeny implicitly proceeded from the assumption that the statute had codified the common law in considering whether a class of victims could be foreseeable, the court’s reasoning was consistent with the narrow common-law view of the exception. The only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours. “In determining that such schoolchildren were within such a class, we focused on the following facts: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were 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.” Prescott v. Meri
In the present case, the plaintiff was not compelled statutorily to relinquish protective custody of her child. No statute or legal doctrine required the plaintiff to enroll her child in the after school program; nor did any law require her to allow her child to remain after school on that particular day. Contrast General Statutes §§ 10-157 and 10-220 (school boards and superintendents required to maintain schools for benefit of students); General Statutes §§ 10-184 and 10-220 (children statutorily compelled to attend school and parents statutorily obligated to send them to school). The plaintiffs actions were entirely voluntary, and none of her voluntary choices imposes an additional duty of care on school authorities pursuant to the Burns standards.
We recognize that our state statutes condone and even encourage the use of public school facilities for the very purpose for which the plaintiffs child was in attendance at the school on the day of the plaintiffs fall.
We disagree with the Appellate Court majority that the legislature manifested an intent to abrogate the
More likely, as Judge Schaller noted, “[t]he liability insurance requirement serves to protect against various types of risks associated with operating child care services. For example, such insurance would provide coverage if a child were injured and came within one of the recognized exceptions to governmental immunity.” Durrant v. Board of Education, supra, 96 Conn. App. 485 n.8 (Schaller, J., dissenting). Additionally, because municipalities are liable for an employee’s negligent performance of ministerial acts, and for negligence in connection with money-making activities and nuisances; see General Statutes § 52-557n (a) (1); the liability insurance requirement for municipalities and boards
The judgment of the Appellate Court is reversed and the case is remanded with direction to affirm the judgment of the trial court.
In this opinion ROGERS, C. J., and BORDEN and VERTEFEUILLE, Js., concurred.
The individual defendants are: Anthony Amato, a former superintendent of the city of Hartford’s public schools; Fran DiSiores, the principal of West Middle School, a Hartford public school; and Rick Deschenes, the director of maintenance of West Middle School.
General Statutes § 52-557n (a) (2) provides in relevant part: “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” The court has explained that, as a general matter, § 52-557n was enacted to codify the common law and to limit the scope of governmental immunity. Conway v. Wilton, 238 Conn. 653, 672, 680 A.2d 242 (1996).
General Statutes § 17b-737 provides: “The Commissioner of Social Services shall establish a program, within available appropriations, to provide grants to municipalities, boards of education and child care providers to encourage the use of school facilities for the provision of child day care services before and after school. In order to qualify for a grant, amunicipality, board of education or child care provider shall guarantee the availability of a school site which meets the standards set by the Department of Public Health in regulations adopted under sections 19a-77, 19a-79, 19a-80 and 19a-82 to 19a-87a, inclusive, and shall agree to provide liability insurance
“Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. . . . The doctrine of governmental immunity has provided some exceptions to the general rale of tort liability for municipal employees. ” (Citations omitted.) Burns v. Board of Education, supra, 228 Conn. 645. Governmental immunity in such cases depends on whether the act in question involves a ministerial or discretionary act. “[A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act ... . The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” (Internal quotation marks omitted.) Id. “The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where 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 . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.” (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). Only the first exception, which this court, addressed more specifically in Bums and its progeny, is at issue in this appeal.
“In Segreto, [the Appellate Court] stated that ‘although the general rule is that a determination as to whether the actions or omissions of a municipality are discretionary or ministerial is a question of fact for the jury, there are cases where it is apparent from the complaint.’ . . . Segreto v. Bristol, supra, 71 Conn. App. 855.” Durrant v. Board of Education, supra, 96 Conn. App. 460 n.5.
“For the purposes of this appeal, the plaintiff has stipulated that the only exception to the qualified immunity of a municipal employee for discretionary acts that is relevant to the present case is the exception permitting a tort action in circumstances of perceptible imminent harm to identifiable individuals or a class of foreseeable victims. She claims that, on the facts of this case, she is a member of an identifiable class of foreseeable victims subject to imminent harm for purposes of satisfying the exception to qualified immunity of a municipal employee for discretionary acts.” Durrant v. Board of Education, supra, 96 Conn. App. 460 n.6.
“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits 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
In examining the legislative history of § 52-557n, this court has concluded that the statute “was intended, in a general sense, both to codify and to limit municipal liability, but [the legislative history] reflects confusion with respect to precisely what part of the preexisting law was being codified, and what part was being limited.” (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 839 n.7, 905 A.2d 70 (2006).
Compare Evon v. Andrews, supra, 211 Conn. 507-508 (foreseeable victim exception not satisfied in action brought against city officials after fire in multifamily apartment dwelling killed five people, officials immune for negligent failure to enforce various laws concerning safety of rental dwellings) and Shore v. Stonington, supra, 187 Conn. 157 (foreseeable victim exception not satisfied to waive immunity of police officer who failed to arrest driver, despite evidence of intoxication, and driver’s vehicle later struck and killed plaintiffs decedent) with Sestito v. Groton, supra, 178 Conn. 528 (action against police officer who watched public disturbance involving group of approximately nine men without interfering until plaintiffs decedent was shot could be submitted to jury).
We are mindful that parents often need to place their children in after school care and that the program the plaintiff in the present case chose may have been the most convenient, least expensive and most beneficial, in view of the homework assistance component, of all her options. These factors did not, however, make her child’s attendance compulsory.
Additionally, we accept the validity of the plaintiffs after school program choice, particularly in light of the homework component, and we acknowledge the general proposition, implicit in the plaintiffs argument, that the law’s policy choices should be informed by the incentives and disincentives created by any particular rule of law. See DiLullo v. Joseph, 259 Conn. 847, 854, 792 A.2d 819 (2002). We disagree, however, that we must extend the narrow exception involved in the present case in order to further the goals the plaintiff hopes to achieve. Certainly, other options could provide homework assistance attendant to after school care, and we cannot imagine that the plaintiff made or will make her choices in the best interest of her child based on the likelihood of recovery of damages in the event of someone’s negligence. Cf. Prescott v. Meriden, supra, 273 Conn. 766 (recognizing benefits of parental involvement in child’s extracurricular activities but rejecting contention “that any parent will choose to attend his or her child’s school
Dissenting Opinion
join, dissenting. I believe that the majority opinion in this case misreads and misapplies the line of governmental immunity decisions by this court starting with Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994), and culminating with our most recent opinion in Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005). In my view, the “evolving expectations of a maturing society”; Burns v. Board of Education, supra, 647; require us to conclude that young children attending day care programs held at public schools pursuant to General Statutes § 17b-737,
Thus, my disagreement begins with the majority’s rejection of the “underlying premise of the Appellate Court’s reasoning that the plaintiffs child was an identifiable member of a foreseeable class of persons . . . .”
My analysis begins with the Burns standards also relied upon by the majority. In that case, this court concluded that a fourteen year old student, injured at a public school during the school day, was a member of a foreseeable class of victims owed a special duty of care by the superintendent of schools, thus abrogating the defendants’ governmental immunity. Burns v. Board of Education, supra, 228 Conn. 650. We noted that “[t]he ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. . . . Foreseeability in this context is a flexible concept, and may be supported by reasonable reliance, impeding others who might seek to render aid, statutory duties, property ownership or other factors. . . . Moreover, just as the doctrine of governmental immunity and its exceptions are the product of the policy considerations that aid the law in determining whether the interests of a particular type are entitled to protection ... so may evolving expectations of a maturing society change the harm that may reasonably be considered foreseeable. . . .
“In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim. . . . Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have
In Burns, this court applied these factors and “note[d] that statutory and constitutional mandates demonstrate that school children attending public schools during school hours are intended to be the beneficiaries of certain duties of care. Statutes describe the responsibilities of school boards and superintendents to maintain and care for property used for school purposes. The supervisory responsibilities of the superintendent of schools are not automatically abrogated by the designation of a head custodian to undertake immediate responsibility for the salting and sanding of the school campus on any particular day.
“Statutes also describe the responsibilities of school children to attend school. The presence of the plaintiff child on the school premises where he was injured was not voluntary. As a fourteen year old at the time of the accident, he was statutorily compelled to attend school and to obey school rules and discipline formulated and enforced pursuant to statute. His corresponding entitlement to a public education has constitutional underpinnings in this state.
“The result of this network of statutory and constitutional provisions is that the superintendent of schools bears the responsibility for failing to act to prevent the risk of imminent harm to school children as an identifiable class of beneficiaries of his statutory duty of care. At least during school hours on school days,
The Appellate Court majority correctly observes that “Burns does not limit its holding to apply only to children attending public school during the regular school day. Although Burns decided that such children were a class of foreseeable victims to whom the defendant owed a duty, it did not state that such children were the only class of victims to which the defendant could owe a duty.” Durrant v. Board of Education, supra, 96 Conn. App. 469 n.9. Indeed, Burns uses the inclusive phrase “[a]t least” in describing its applicability to children at school during regular school hours. Burns v. Board of Education, supra, 228 Conn. 649. Thus, I agree with the Appellate Court majority that there is no principled reason why that class of foreseeable victims cannot be expanded beyond the “regular school day” to children who have stayed at school to attend a day care program held there.
The majority, in stating that “[t]here is a significant distinction . . . between a program in which participation is encouraged and one in which it is compelled,”
Moreover, as the Appellate Court majority aptly points out, the legislature apparently realized that providers of after school programs might face liability issues, presumably because of the risks attendant to caring for young children, because it conditioned “the receipt of grants under § 17b-737 on municipalities or boards of education obtaining liability insurance coverage. Liability insurance protects an insured from the payment of funds due in the event of an insured’s negligence. ... If the legislature believed that § 52-557n exempted those in the category of the defendants from liability arising out of programs established pursuant to § 17b-737, there would be no reason for the legislature to have provided for liability insurance in the latter statute.” (Citation omitted; internal quotation marks omitted.) Durrant v. Board of Education, supra, 96 Conn. App. 471. In my view, the majority opinion takes a significant step toward rendering this legislative language surplusage because, if children attending day care programs, let alone their parents, are not in the class of persons subject to imminent harm, the need for day care providers to carry liability insurance is significantly reduced.
I agree with the Appellate Court majority that “there is a direct connection between the reason for the plaintiffs presence and the statutes of Connecticut that provide for the public purpose and establishment of after school programs,” and that our state’s statutes “condone and encourage the use of public school facilities for the very purpose that the plaintiffs child was in attendance at West Middle School on the day of the plaintiffs fall.” Id., 470. Under my reading of this court’s previous decisions in this field, I conclude that young
General Statutes § 17b-737 provides: “The Commissioner of Social Services shall establish a program, ■within available appropriations, to provide grants to municipalities, boards of education and child care providers to encourage the use of school facilities for the provision of child day care services before and after school. In order to qualify for a grant, a municipality, board of education or child care provider shall guarantee the availability of a school site which meets the standards set by the Department of Public Health in regulations adopted under sections 19a-77, 19a-79, 19a-80 and 19a-82 to 19a-87a, inclusive, and shall agree to provide liability insurance coverage for the program. Grant funds shall be used by the municipality, board of education or child care provider for the maintenance and utility costs directly attributable to the use of the school facility for the day care program, for related transportation costs and for the portion of the municipality, board of education or child care provider liability insurance cost and other operational costs directly attributable to the day care program. The municipality or board of education may contract with a child day care provider for the program. The Commissioner of Social Services may adopt regulations, in accordance with the provisions of chapter 54, for purposes of this section. The commissioner may utilize available child care subsidies to implement the provisions of this section and encourage association and
“The defendants are Anthony Amato, the superintendent of Hartford public schools; the board of education of the city of Hartford; Fran DiSiores, the principal of West Middle School, a Hartford public school; and Rick Deschenes, the director of maintenance of West Middle School.” Durrant v. Board of Education, 96 Conn. App. 456, 457 n.1, 900 A.2d 608 (2006).
It is well settled that a “municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act. . . . The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. . . . The only exception to a municipal employee’s qualified immunity for discretionary acts that is relevant to the present case is where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person [or member of an identifiable class of foreseeable persons] to imminent harm . . . .” (Citation omitted; internal quotation marks omitted.) Prescott v. Meriden, supra, 273 Conn. 763; see also General Statutes § 52-557n (a) (2) (“[ejxcept as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . [B] negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law”).
I am not troubled by the argument of the amicus curiae Connecticut Association of Boards of Education that this premise conceivably increases municipalities’ exposure by enlarging the protected class even further from parents to other relatives, friends or babysitters. Indeed, the amicus notes that the plaintiff in this case was picking up her nephew in addition to her own child when she was injured. The municipalities’ overall exposure should not change significantly because, if a parent were available to pick up a child from school, there would be no need to send someone in his or her stead. Put differently, I see no realistic possibility that the overall number of individuals actually going to pick children up from school or school programs will increase.
Like the majority, I too assume that the puddle in the stairwell satisfies the imminent harm element of the exception because it presented a danger that was limited in duration.
The majority argues that “[t]he Appellate Court [majority] failed to recognize the significance of the enactment of § 52-557n as it affected the common-law authority of trial courts to determine when governmental immunity may be abrogated.” The majority notes that this court has assumed, without deciding, that § 52-557n, “ ‘codifies the common law’ ” with respect to the abrogation of governmental immunity, and that this court “is not free to expand or alter the scope of governmental immunity” since the enactment of that statute. I disagree with the majority’s apparent conclusion that we
Unlike the majority, I believe that our decision in Prescott v. Meriden, supra, 273 Conn. 759, does not preclude the plaintiff from recovering in this case solely because of her status as a parent. In Prescott, we concluded that the plaintiff, who was injured in the stands on a rainy day while attending a Thanksgiving Day high school football game in which his son was playing, was not a member of a class of foreseeable victims subject to imminent harm. Id., 761-63. Distinguishing our decisions in Burns and Purzycki, we emphasized that “the plaintiffs presence at the game was purely voluntary.
The plaintiff in the present case is distinguishable from the parent in Prescott. In that case, we pointed out that any member of the public was welcome to enter the football stands and watch the game. Id., 764. In contrast, in this case, only a very limited group of people were welcome to come to the back entrance of the school building to pick up children attending programs there. Moreover, as both the majority and I agree, the plaintiff had no choice but to pick up her child from the school at the end of the day care program because of his young age, unlike a parent who chooses to attend a high school football game as a spectator.
General Statutes § 10-184 provides: “All parents and those who have the care of children shall bring them up in some lawful and honest employment and instruct them or cause them to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States history and in citizenship, including a study of the town, state and federal governments. Subject to the provisions of this section and section 10-15c, each parent or other person having control of a child five years of age and over and under eighteen years of age shall cause such child to attend a public school regularly during the hours and terms the public school in the district in which such child resides is in session, unless such child is a high school graduate or the parent or person having control of such child is able to
General Statutes § 10-220 provides in relevant part: “(a) Each local or regional board of education shall . . . cause each child five years of age and over and under eighteen years of age who is not a high school graduate and is living in the school district to attend school in accordance with the provisions of section 10-184, and shall perform all acts required of it by the town or necessary to carry into effect the powers and duties imposed by law. ...”
As the Appellate Court aptly noted, “we consider it probable that more six year olds leaving the budding, having attended an after school program, would be injured if no parent escorted them than if parents accompanied them out of the building. Thus, if the six year old was part of an identifiable class but his parent was not, more litigation rather than less would ensue.” Durrant v. Board of Education, supra, 96 Conn. App. 469-70 n.10.
I disagree with the majority’s apparent reading of Burns, a majority opinion in which I joined, as standing for the proposition that municipalities’ governmental immunity is abrogated with respect to children attending school because of the compulsory nature of public education. In Burns, this court stated only that “[sjtatutes also describe the responsibilities of school children to attend school. The presence of the plaintiff child on the school premises where he was injured was not voluntary. As a fourteen year old at the time of the accident, he was statutorily compelled to attend school and to obey school rules and discipline formulated and enforced pursuant to statute.” (Emphasis added.) Burns v. Board of Education, supra, 228 Conn. 649. Although parents and guardians are statutorily obligated to cause their children “to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States history and in citizenship, including a study of the town, state and federal governments”; General Statutes § 10-184; they are not required to satisfy that requirement by sending them to public school. In accordance with well established constitutional restrictions, § 10-184 explicitly permits parents to provide “elsewhere” for “equivalent instruction in the studies taught in the public schools” by, for example, sending children to private school or home schooling them appropriately. Thus, parents are compelled only to educate their children, and hot to send them to a particular type of school.
See 29 H.R. Proc., Pt. 20,1986 Sess., p. 7581, remarks of Representative Peter A. Nystrom (Describing the “basic concepts” of the bill, including “increasing the availability of day care services. We’re hoping to make it more affordable to individuals who need that service. We’re also hoping to expand parental choice in the type of day care service that they would choose for their child.”); see also id., p. 7616, remarks of Representative Nystrom (noting that grants program was intended to provide “before and after school day care to address the problem of latch key children”).
I find somewhat troubling two rather dismissive statements contained in the majority opinion. First, in footnote 10, the majority states that it is “mindful that parents often need to place their children in after school care and that the program the plaintiff in the present case chose may have been the most convenient, least expensive and most beneficial, in view of the homework assistance component, of all her options. These factors did not, however, make her child’s attendance compulsory-” In footnote 11, the majority then posits that “other options could provide homework assistance attendant to after school care, and we cannot imagine that the plaintiff made or will make her choices in the best interest of her child based on the likelihood of recovery of damages in the event of someone’s negligence.”
Although the majority’s observation likely is correct, its opinion nevertheless penalizes those citizens who may well have the fewest options, namely, people who have no choice but to rely on government provided before and after school programming for quality child care. Put differently, the majority opinion has its harshest effect on disadvantaged, frequently single, parents, to whom enrollment in after school programs sponsored by municipalities may not be a choice, but a practical and economic necessity.
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