CT Board of Education and Sovereign Immunity

CT Appellate Court:

Board of Education is not entitled to Sovereign Immunity where its employees fail to comply with terms of its anti-bullying policy.

The Connecticut Appellate Court this month in Palosz v. Town of Greenwich (Appellate Court Docket No. AC 40315) affirmed a trial court ruling that a Board of Education is not entitled to sovereign immunity where it is alleged to have failed to follow its anti-bullying policy. The court held that issues with the development, implementation, submission, and assessment of the policy all fall within the realm of state action and may afford sovereign immunity, but compliance with and enforcement of the policy (including the policing of student bullying and other behavior) do not, and rather fall within the “broad mandate of control” granted to municipalities over public schools.

Background

This appeal presents the latest ruling in a case that has spanned several years in the aftermath of the tragic 2013 suicide of a Connecticut high-schooler. The student’s family alleges that school employees had been aware of the bullying for years, and yet failed to address the problem despite what appears to be a robust, district-wide anti-bullying policy.

The district’s policy requires that any school board employee who witnesses an incident of bullying file an oral report of such an incident within twenty-four hours and a written report within forty-eight hours. It further requires an investigation of any reported bullying incident and, if the incident is verified, development of a student safety plan to prevent additional bullying. The child’s parents are to be notified within forty-eight hours of the report and are invited to discuss with school administrators the measures being taken to intervene and prevent further bullying. Repeated incidents of bullying necessitate development of a specific, written intervention plan.

Despite the implementation of what appears to be an extensive plan to combat bullying, and despite the fact that several school employees were “long aware” of the problem, the family states that none of the above measures were taken to prevent the “severe and continual verbal and physical bullying by [the student’s] fellow classmates.” The bullying was specifically described in a document prepared by the student’s former middle school to assist with transition to high school. Although the family alleges that at least two middle school assistant principals, his high school counselor, teachers, and other staff were aware of the bullying, apparently none of those school officials initiated the process of creating a student safety plan pursuant to the district’s overall anti-bullying plan.

Issue on Appeal

The legal issue in this appeal centered on whether the Defendant Board of Education was acting as an agent of the State of Connecticut when its employees failed to properly execute its anti-bullying plan. If so, then sovereign immunity applies, and a Claims Commissioner would be required to approve the claim before the family would be allowed to sue. The Appellate Court in this case held that the Board of Education was acting as an agent of the Town of Greenwich, not the State of Connecticut, and therefore sovereign immunity did not apply.

The school board argued that it was entitled to sovereign immunity in part because the statute requiring development of local anti-bullying plans (Conn. Gen. Stat. § 10-222d) subjects school boards to “ongoing state oversight and control”. The statute in question details reporting requirements for a district’s anti-bullying plan and states that school boards must require public schools to submit an assessment of their plan to the State’s Department of Education. The court disagreed with the school board, holding that the failure to properly execute the plan did not “control or interfere with the activities of the state.” The court explained that the school board acts as an agent of the state (and therefore receives sovereign immunity) where it works to develop and implement its anti-bullying plan, but acts as an agent of its municipality in properly enforcing the plan by policing student behavior pursuant to the “broad mandate of control” provided by Conn. Gen. Stat. § 10-240.

The court also denied sovereign immunity under the reasoning that the qualified immunity provided by § 10-222l would be superfluous if school boards were already protected for the same actions by sovereign immunity. Qualified immunity is granted pursuant to § 10-222l where school boards act in good faith to report, investigate, and respond to bullying under their anti-bullying plans, but immunity is specifically withheld in instances where a school board has acted with “gross, reckless, wilful or wanton misconduct.” Noting that the purpose of sovereign immunity is not only to protect the state from damages, but also to prevent the state from having to litigate whether it is ultimately liable, the court stated that the legislature could not have intended to grant sovereign immunity from all such claims where § 10-222l specifically permits liability in some circumstances. “Had the legislature agreed . . . that sovereign immunity barred claims like the one presented in this case, § 10-222l would have been unnecessary. It makes more sense that the legislature concluded instead that § 10-222l was necessary because local boards of education are not protected by sovereign immunity when their employees fail to comply with an anti-bullying policy.”

Conclusion

This case comes after a long list of cases decided by the Connecticut Superior Court, about half of which have held that local boards of education are not entitled to sovereign immunity in such cases and about half of which have held otherwise (see the Appellate Court’s opinion, footnote 10). The Defendant Town of Greenwich Board of Education may appeal this decision to the Connecticut Supreme Court. If they fail to do so, or if the Connecticut Supreme Court declines to hear the appeal, the family may continue suit at the trial court level.

Appellate Court Upholds Eighty-Year Precedent: Workers’ Comp. Available for On-the-Job Complications of Pre-Existing Conditions

Can an employee recover from workers’ compensation when an on-the-job injury is the result of a pre-existing condition? In Connecticut, the answer is still yes.

BACKGROUND

Sharon Clements was working as a mess hall attendant at the Coast Guard Academy in New London when she passed out without warning, falling backwards and hitting her head on the asphalt. She sustained serious injuries as a result, but was initially denied workers’ compensation for these injuries because she passed out as the result of a known heart condition (a “cardiogenic syncope”). Had the injury to her head been the result of a slip-and-fall, there would have been no question that she would have received compensation. But the Connecticut Workers’ Compensation Commission determined that workers’ compensation would not cover Ms. Clements’ injury when it decided that a head injury caused by a syncopal episode did not “arise out of” her employment.

“ARISING OUT OF” EMPLOYMENT

For an injury to be compensable by workers’ compensation, it must “arise out of” one’s employment. In other words, the injury must have occurred under the time, place, and circumstances of one’s job. The Workers’ Compensation Commission stated that Ms. Clements was ineligible for benefits because she failed to prove that her injuries “arose out of” her employment; they said that, unless she could prove that the injury would not have happened if she were somewhere else, Ms. Clements would not be able to recover.

The Connecticut Appellate Court disagreed, citing a case from 1937 (Savage v. St. Aeden’s Church) that displayed strikingly similar facts: a church employee with a pre-existing heart condition was found on the ground with a head injury after falling backward onto a concrete floor. The Connecticut Supreme Court said in that case that, regardless of a pre-existing condition, an injury “arises out of” employment if it develops within it. This is because workers’ compensation is not designed to punish an employer for dangerous working conditions; its purpose is “to compensate employees for injuries without fault by imposing a form of strict liability on employers.”

PRESENCE OF A “HAZARD”

The Defendant employer in this case attempted to argue that it did not have to pay benefits because the injury was not linked to the presence of a hazard on the employer’s premises. However, the Appellate Court stated that a “hazard” was not limited to a dangerous condition on the premises; “the accident, itself, is the hazard.” In other words, the fact that an injury occurred means there was a hazard.

In a recent case (Blakeslee v. Platt Bros.), the Connecticut Supreme Court held that an injury may arise out of employment even though the employment posed no particular risk of that injury. In other words, you might be just as likely to fall and break a bone at home as you are at work, but that does not mean that you should be denied workers’ compensation if it happens at work- an employer accepts the risk that an employee will fall and break a bone when the employee is hired; the risk “exists as one of the conditions of employment.”

OUTLOOK

The outcome of this case is that Ms. Clements will not be denied workers’ compensation simply because she had a condition that predisposed her to falling. Though the employer is not liable for the pre-existing condition that caused Ms. Clements to become lightheaded and faint, it still must pay benefits for the injury resulting from Ms. Clements striking her head on the ground. An employer accepts the risk that injuries may occur as a result of pre-existing conditions, and the mere fact that a similar injury couldhave occurred elsewhere does not bar the employee from receiving workers’ compensation benefits.

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