Paul Mazzo v. Town of Fairfield Board of Education
– August 20, 2013
MEMORANDUM OF DECISION RE MOTION TO STRIKE # 118
The defendants have moved to strike those portions of the plaintiffs’ second amended complaint which allege statutory negligence arising out of their alleged failure to comply with the anti-bullying statute, General Statutes § 10–222d et seq. The plaintiffs, Paul Mazzo and Lorraine Mazzo, brought the present action both individually and on behalf of their daughter, K.M., alleging that K.M. was extensively bullied by another student, S.R., while attending Tomlinson Middle School, culminating in an attack on December 22, 2011, which left her seriously injured. The defendants claim that the anti-bullying statute does not allow for a private cause of action. For the reasons stated herein, the court agrees.
The plaintiffs filed a third amended complaint on July 15, 2013, the same day that the court took the papers on the present motion.1 The third amended complaint contains twenty-four counts against the Town of Fairfield Board of Education (negligence, statutory negligence, recklessness, liability pursuant to General Statutes § 10–235, liability pursuant to General Statutes § 7–465); the Town of Fairfield (liability pursuant to General Statutes § 52–557n, liability pursuant to General Statutes § 7–465); 2 David Title, Superintendent of Schools for the Town of Fairfield (negligence, statutory negligence, recklessness); Connee Dawson, Principal of Tomlinson Middle School (negligence, statutory negligence, recklessness); Joshua Marko, Dean of Students at Tomlinson Middle School (negligence, statutory negligence, recklessness); Vanessa Constanzo; 3 Janet Rainford (vicarious liability, negligence); Vernon Rainford (vicarious liability, negligence) and S.R., ppa Janet Rainford (recklessness, assault and battery, negligent infliction of emotional distress, intentional infliction of emotional distress). Title, Dawson, Marko and the Town of Fairfield Board of Education (henceforth defendants) move to strike counts two, four, six and eight of the second revised complaint, which are now counts two, five, eight and eleven of the third revised complaint. These counts allege that the defendants are liable for negligence for their failure to comply with the anti-bullying statute, General Statutes § 10–222d et seq. The defendants argue in their memorandum in support that the anti-bullying statute does not allow for a private cause of action. The plaintiffs argue in their memorandum in opposition that it does so by implication as revised in 2011. The plaintiffs also submitted a copy of the 2011 bill showing the changes, a question and answer sheet entitled “Bullying Harassment in Connecticut,” which does not clearly indicate its source, and a transcript of the Senate debate on the bill.
“The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial.” Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). In Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 245–46, 890 A.2d 522 (2006), the Supreme Court upheld a trial court’s determination on a motion to strike that a statute did not create a private cause of action.
The defendants argue that the anti-bullying statute does not create a private cause of action because it lacks an explicit statement that it does so and there is a presumption that private causes of action do not exist unless expressly stated. The plaintiffs argue that in amending the anti-bullying statute in 2011 the legislature added a private cause of action.
“[W]e begin our analysis with the well settled fundamental premise that there exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, the [plaintiff bears] the burden of demonstrating that such an action is created implicitly in the statute ․ In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose ․ benefit the statute was enacted ․ ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ․ Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?” Perez–Dickson v. Bridgeport, 304 Conn. 483, 506–07, 43 A.3d 69 (2012), citing Gerardi v. Bridgeport, 294 Conn. 461, 468–69, 985 A.2d 328 (2010); see also Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249, 680 A.2d 127 (1996) (source of factors, referred to as the Napoletano factors), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997), overruled on other grounds by Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 284, 914 A.2d 996 (2007). “[T]he [plaintiffs] must meet the threshold showing that none of the three factors weighs against recognizing a private right of action ․ The stringency of the test is reflected in the fact that, since this court decided Napoletano, we have not recognized an implied cause of action despite numerous requests.” (Internal quotation marks omitted.) Gerardi v. Bridgeport, supra, 294 Conn. 469–70.
“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․” (Internal quotation marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 66, 946 A.2d 862 (2008).
In the present case, the plaintiffs, an allegedly bullied student and her parents, are certainly within the class which the anti-bullying statute was intended to benefit. Therefore the court’s primary inquiry will be whether there is evidence of legislative intent to create a private cause of action. Prior Superior Court decisions have found that “nothing in Connecticut General Statutes Sec. 10–222d as it existed at the time of the offense [ (December 7, 2007) ] indicates a sufficient legislative intent to create a private cause of action against the municipal defendants for failure to comply with its mandates.” Hernandez v. West Haven Board of Education, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV 09 5010484 (June 7, 2013, Sequino, J.); see also Roach v. First Student Transportation, LLC, Superior Court, judicial district of New Haven, Docket No. CV 106007924 (August 18, 2010, Lager, J.) (50 Conn. L. Rptr. 517, 518–19); Dornfried v. Berlin Board of Education, Superior Court, judicial district of New Britain, Docket No. CV 06 4011497 (September 26, 2008, Trombley, J.) (46 Conn. L. Rptr. 706, 711–12); Antalik v. Thomaston Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 075001762 (August 13, 2008, Gallagher, J.) [46 Conn. L. Rptr. 179]; Santoro v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 04 0488583 (August 18, 2006, Robinson, J.) (41 Conn. L. Rptr. 850, 851). The plaintiffs correctly assert that all of these cases concerned actions which predated the legislature’s amendment of the anti-bullying statute on July 1, 2011.
The court will next look to the amendments to the anti-bullying statute which the legislature made on July 1, 2011. The 2011 amendments redefined various terms; extended the statute to encompass cyber-bullying; introduced new positions to enforce the statute; provided more details as to strategy implementation, analysis and reporting; and provided immunity to individuals who complied with the statute. The plaintiffs specifically claim that § 10–222l, involving immunity, implies a private cause of action:
Immunity of school employees, students, parents or guardians, individuals and boards of education from liability for certain actions relating to reporting, investigating and responding to school bullying.
(a) No claim for damages shall be made against a school employee, as defined in section 10–222d, who reports, investigates and responds to bullying, as defined in said section 10–222d, in accordance with the provisions of the safe school climate plan, described in said section 10–222d, if such school employee was acting in good faith in the discharge of his or her duties or within the scope of his or her employment. The immunity provided in this subsection does not apply to acts or omissions constituting gross, reckless, willful or wanton misconduct.
(b) No claim for damages shall be made against a student, parent or guardian of a student or any other individual who reports an act of bullying to a school employee, in accordance with the provisions of the safe school climate plan described in said section 10–222d, if such individual was acting in good faith. The immunity provided in this subsection does not apply to acts or omissions constituting gross, reckless, willful or wanton misconduct.
(c) No claim for damages shall be made against a local or regional board of education that implements the safe school climate plan, described in section 10–222d, and reports, investigates and responds to bullying, as defined in said section 10–222d, if such local or regional board of education was acting in good faith in the discharge of its duties. The immunity provided in this subsection does not apply to acts or omissions constituting gross, reckless, willful or wanton misconduct.
The plaintiffs contend that there would be no need to provide immunity where there was not already liability, therefore the anti-bullying statute permits a private cause of action. This argument does not comport with the state’s policy disfavoring the creation of a private cause of action by implication. In addition, this court believes that there are two alternative explanations for the purpose of § 10–222l. First, it may be intended to immunize teachers, administrators, schools, students and parents who act in good faith from liability under other causes of action, either arising under separate statutes, such as General Statutes § 52–557n, which waives governmental immunity in certain circumstances, or from the common law. In the present case the defendants are being sued under several different theories of liability, including common-law negligence. Section 10–222l may provide a defense to these other claims if any of the defendants made a good faith effort to follow the statute’s guidelines. Second, § 10–222l may be intended to immunize teachers, administrators, schools, students and parents from liability which might directly arise from reporting an act of bullying, such as a defamation suit. Either of these interpretations, or another interpretation, may be accurate. This court makes no finding regarding the scope of the immunity provided by the section; it simply finds that the statute may be read to have effect without implying a cause of action under the anti-bullying statute itself and therefore does not imply a legislative intent to create a private cause of action, nor is a private cause of action a necessary part of the statutory scheme.
Another possible source of legislative intent is the legislative history. The Superior Court in Dornfried v. Berlin Board of Education, supra, 46 Conn. L. Rptr. 411–12, considered the legislative history then available: “in referring to the statements made by Representative Mushinsky (35th), a major sponsor of the bill, as to the omission of any penalties for the failure to follow the policy and procedures contained therein, Representative Green (1st), a major supporter of the bill, stated: ‘I appreciate Representative Mushinsky, where she really wants us to be aware of this issue. It is not a punitive kind of thing. I would hope the parents don’t target out teachers, don’t target school systems to say that we have all these acts of bullying, the teachers or the administrators are not doing their job. That is not what the intent of the bill is. The intent of this bill is to provide safe environments for our young people. It is not to look for blame on anybody’s part. It is to come up with policies. It is to come up with some ideas to make sure that we can have kids not only respect themselves, but respect others.’ 45 H.R. Proc., Pt.10, 2002 Session, p. 3212.” “Those statements, and many others made throughout the debates and discussions that resulted in the bill’s passage belie any claim by the plaintiffs that the General Assembly intended to grant a private right of action to persons such as the plaintiff who claim that educators were not following the policies embodied in the statute. The statute does not create such a right, either expressly or by implication.” Id. “A review of the legislative history does not cause this court to conclude that the statute was in any way intended to create a private right of action against the school, the district or school officials.” Id.
The plaintiff has suggested that the 2011 amendments to the bill had a different intent, but after reading the legislative history of the 2011 amendments the court believes that Representative Green’s statement is still the best indicator of legislative intent as to a private right of action, outside of the text of the statute itself. There is no doubt that the legislature has taken a strong position against bullying in Connecticut’s schools. A 2009 report to the legislature by the Commission on Children entitled Stand Up to Bullying: A Safe Learning Environment for All Students indicated that nearly 3 in 10 Connecticut high school students and 35 percent of 9th graders reported having been bullied on school property in the last year (2007). Over 50 percent of these 9th graders indicated that they had been bullied because of their weight, size or physical appearance. Data from the U.S. Department of Health and Connecticut School Health Surveys in 2005 and 2007 indicate that victims of bullying reported lower grades and higher rates of truancy, mental illness and attempted suicide than other students. If permitted, bullying has been shown to negatively affect school culture and safety for students and the adults involved in their education. The commission recognized the importance of a whole school approach for effective anti-bullying urging among other strategies, regular statewide review and analysis of school anti-bullying policies and efforts to assist schools in developing safe learning environments where children can learn without fear of physical or verbal harm or intimidation. Growing awareness of the negative impact of bullying on individual students as well as the quality of education and school safety were among the foremost issues which the legislators addressed in passing the 2011 amendment to the state’s anti-bullying law. In so doing the legislature maintained its focus on implementing strategies and recording progress rather than punishing teachers and schools. Neither the plain text of the anti-bullying statute nor its legislative history suggests that the legislature intended to create a private right of action when it enacted the statute.
Based on the above review and analysis of prior case law, statutory language, and legislative history, the court concludes that the anti-bullying statute, as amended, § 10–222d et seq., does not provide for a private cause of action. The court therefore grants the motion to strike as to counts two, five, eight and eleven of the third revised complaint, which are identical to counts two, four, six and eight of the second amended complaint.
1. FN1. While there is uncertainty within the Superior Court as to the proper method to handle an amended complaint filed during the pendency of a motion to strike; see Smith v. New Haven, Superior Court, judicial district of New Haven, Docket No. NNH CV 09 5031653 (January 14, 2011, Burke, J.); but see Newlands v. NRT Associates, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 08 4027098 (April 28, 2010, Tyma, J.) (49 Conn. L. Rptr. 704, 705); this court finds that the counts which are the subject of the motion to strike have not been altered, and it will consider the motion as applying to the third amended complaint.
2. FN2. The Town of Fairfield is listed as a defendant in the complaint, but not in the summons.
3. FN3. Vanessa Constanzo is listed as a defendant in the summons, but there are no counts against her in the complaint.
Sommer, Mary E., J.