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.

MY CLIENT GETS PERMISSION TO SUE THE STATE

My client, Kim Smith, has been given permission to sue the State of Connecticut over a very disturbing incident that happened at a state beach bathing house. Connecticut is one of only a handful of states in the nation where you must first ask permission to sue the state. It’s an old law that actually goes back to 13th century England with the notion that the king can do no wrong. In Connecticut, getting the green light to sue the state is not something easily done.

I will say through very hard work by myself and others on my staff, we are getting Kim Smith her day in court. Below the picture, you will see the Associated Press story about the case. This story was picked up all over the United States.

 

Kim Smith with Attorney Paul Levin

Kim Smith with Attorney Paul Levin

HARTFORD, Conn. (AP) — An East Hartford family that was spied on while showering at Hammonasset Beach State Park in 2011 by two former park employees has been granted permission to sue the state of Connecticut for negligence in superior court.

State Claims Commissioner J. Paul Vance Jr. determined the state may have caused damage to Kim Smith by failing to fix holes that existed for years in the shower stall, where she and her younger daughters were showering. Vance said there was also evidence staff members were aware of holes near the toilets in park bathrooms.

“The evidence supported a claim for negligence against the state of Connecticut for failure to supervise and remediate the condition that allowed for holes in the shower facilities,” read Vance’s April 20 decision, obtained Thursday by The Associated Press. The state generally is immune from lawsuits unless allowed by the commissioner.

Paul Levin, Smith’s attorney, said he plans to file a lawsuit next week. He said his client was “ecstatic,” after pursuing the matter for 3 1/2 years.

“I always thought that if we had a commissioner that served his function, sort of as the conscience of the state, then they’d look at this and say, ‘This is wrong and let it proceed to court.’ And that’s what happened,” Levin said.

Levin said if such an incident occurred at a private facility, such as a hotel, management would “make a bee line” to apologize and resolve the matter amicably. He said it shouldn’t be a different with a public park.

“When you have people that are coming to your park, enjoying family time and they’re your guests, you just can’t not take care of their privacy interests and allow your buildings and facilities to fall into a state of disrepair and rendering them at risk,” Levin said.

The Department Energy and Environmental Protection, which oversees state parks, declined to comment on the commissioner’s decision. DEEP has said previously its staff “works hard every day to protect the safety, well-being and privacy of visitors to our parks.” It called Smith’s experience an “unfortunate incident” and all bathrooms were later inspected and repaired.

Vance also determined there’s enough evidence to support a claim of “bystander distress” by Smith’s husband Craig, who arrived to learn his wife and daughters, ages 6 and 3 at the time, had been watched through a peep hole by two men employed by the park. However, Vance said the state cannot be held liable for the intentional and criminal acts of former employees. The two seasonal park workers were fired and prosecuted.

Last April, Smith came forward publicly and told her story after learning about a small camera found hidden inside a bathhouse at Hammonasset. She urged people to “proceed with caution” when showering at a state park.

Smith said her family was camping for the first time at the Madison park on July 23, 2011, when she took her two daughters to shower in a bathhouse near their campsite. While they were showering in the stall, Smith said she noticed shadows and movement through a hole at the shower faucet. When she looked closer, Smith said she saw the outline of a man’s face. His eyes were staring back at her.

“I was shaking, mad, scared, humiliated, and of course, worried about my two young daughters,” she said.

Smith later took photos of a space that runs behind the showers, where staff can access pipes, and found holes. Some were the size of a nickel or quarter. She also took pictures of holes she found near toilets, shower stalls and elsewhere throughout the park. She said there were too many to count.

Federal Government Puts Off Decision on Requiring Cars to Have Backup Cameras

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512px-Lexus_backup_camera1A pending rule intended to improve the safety of cars and other light vehicles by increasing the driver’s field of vision has been delayed for a second time. U.S. Secretary of Transportation Ray LaHood announced last month that the National Highway Transportation Safety Administration (NHTSA) would not have final rules relating to requiring all cars to have backup cameras until at least December 31, 2012. Once enacted, every Connecticut passenger vehicle would need to have a backup camera installed by 2014.

The NHTSA’s rule will require all vehicles weighing 10,000 pounds or less to have a backup camera installed that allows the driver to see the area immediately behind the vehicle while driving in reverse. This would apply to all passenger cars, vans and minivans, pickup trucks, and other commonly-used vehicles. According to the New York Times, forty-five percent of new cars currently have backup cameras as a standard feature. They are available as an option in another twenty-three percent of new cars. People who own vehicles without cameras will have to purchase equipment. People who own cars without embedded navigation screens will have to spend $159 to $203 dollars on equipment, according to estimates by the NHTSA. For cars with screens, which may be a feature included with GPS devices, the cost is estimated to be $58 to $88. The NHTSA estimates that the annual cost of the program nationwide will be $1.9 to $2.7 billion.

The NHTSA announced its intention to create this rule in December 2010. The agency issued a press release that month stating that vehicle “blind zones” cause an average of 292 deaths each year, as well as 18,000 injuries. Accidents such as these particularly affect children and the elderly. The NHTSA states that 228 fatal accidents, seventy-eight percent of the total, involve vehicles weighing 10,000 pounds or less.

The backup camera rule originated with a federal law, the Cameron Gulbransen Kids Transportation Safety Act of 2007, which was passed in early 2008 and signed into law by President Bush. Cameron Gulbransen was a two year-old accidentally killed when his father backed over him in his vehicle in the family’s driveway. The law requires several vehicular safety improvements designed to protect children, including “blind zone” visibility features. It also requires features that would reverse power windows if the window encountered an obstruction, and a feature that prevents a car’s transmission from switching to “drive” unless someone was simultaneously pressing the brake pedal.

Federal Safety Agencies Recommend Banning Almost All Electronic Device Usage While Driving

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1035921_33019187_02202012.jpgThe U.S. Department of Transportation (DOT) issued a series of non-binding guidelines to automakers last week, requesting that any integrated electronic devices placed in new cars have a feature disabling social networks like Facebook and Twitter while the car is in motion. DOT may also develop guidelines for handheld electronics like cell phones and voice-activated electronic systems. This is part of DOT’s campaign to cut down on “distracted driving,” meaning driving while using a device that takes the driver’s attention off the road. This includes not only talking on a mobile phone but also texting and using social media.

According to the National Highway Traffic Safety Administration (NHTSA), which is part of DOT, nearly ten percent of all traffic fatalities in 2010 involved distracted driving. The use of hands-free devices like headsets does not necessarily improve a driver’s attention.

Auto industry analysts estimate that the number of sales of new cars that have smartphone and “embedded connectivity units” will increase by twenty-nine percent in the United States in 2012, with at least 5.8 million “in-vehicle units.” These include not only smartphones and other mobile phones, but also devices physically embedded in the cars themselves such as GPS navigation systems. Some cars also feature attached or embedded devices that allow passengers, although ideally not drivers, to access the internet. By 2026, some analysts expect that all cars sold in North America and Japan will have some sort of embedded technology. Mobile phones have grown more sophisticated as well, allowing drivers to make and receive phone calls and to use multiple features of the internet.

In December 2011, the National Transportation Safety Board (NTSB), another agency of DOT, recommended that states enact laws banning the use of mobile phones and other electronic communications devices while driving. In September, it had recommended a ban on mobile device usage by commercial drivers, such as truck drivers. The NTSB has no actual rule-making authority and can only issue recommendations to other federal agencies and state and local governments. This Connecticut Injury Attorney Blog reported on the NTSB’s recommendation in December. Its recommendation specifically covered “non-emergency” use of call phones while driving, but it may expand its recommendations to request a ban on all mobile phone use. It has called distracted driving a public health crisis comparable to drunk driving or smoking.

Automakers are working on guidelines of their own related to distracted driving. Rather than disabling electronic devices, industry guidelines would seek to minimize the amount of time drivers must take their eyes off the road. This would serve to allow drivers to have access to electronic devices, which can come in handy in emergency situations, but would also work to prevent distraction.

Generic Drug Manufacturers shielded from Product Warnings Liability

Consumers in Connecticut and other States who purchase generic drugs instead of brand name prescriptions have had an important legal remedy taken away as a result of a ruling just issued by the United States Supreme Court A divided Court has ruled that those injured or killed by generic brand prescription drugs because the product warnings were inadequate to explain and articulate the risks of taking the medicine can no longer sue the manufacture for damages. A wrongful death or Personal injury claim could still be brought it would appear if the drug were manufactured defectively or designed improperly in a situation where either of which circumstance caused harm. However, if there was simply inadequate information disclosed within the product literature to somebody who went into a CVS pharmacy store in Hartford, for example, resulting in their consuming the drug and suffering harm, their legal remedy now has disappeared against the manufacturer and likely the seller of the generic drugs. Since almost 75% of all prescriptions sold are generic( and cheaper than brand name equivalents) this is a big deal to the consumers.

Private Lawsuit Enforcement of Government and Industry Standards-

The immediate goal of initiating a lawsuit where governmental or Industry standards have been deviated from is obviously to compensate the unfortunate victims injured as a result. What may not be so obvious, however, is that in addition to providing remedies to those who have been injured, the evolving body of standards and practices recognized by governmental bodies and industry standards setting organizations benefits society as a whole, in that litigation premised on these principles often serves as a vital force for change, resulting in safer products, improved warnings, better regulation of work sites , and greater public awareness of the hazards. Over the last fifty years litigation involving these principles has caused significant changes in the way manufacturers do business and in the way businesses run their companies and regulate the safety of their own work environments. In the process, these changes have saved lives here in the United States and abroad, and prevented countless injuries.