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Paul Mazzo v. Town of Fairfield Board of Education: August 20, 2013

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Superior Court of Connecticut.

Paul Mazzo v. Town of Fairfield Board of Education

CV126031781S

— August 20, 2013

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 118

FACTS

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.

APPLICABLE LAW

“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.

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FindLaw: Teen Sues School, Ex-Classmate for Bullying

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By Andrew Chow, Esq. on March 26, 2012 8:35 AM

Time is supposed to heal all wounds. But that’s not the case for Eric Giray, who claims he was beaten by a school bully eight years ago — and has just filed a $1.5 million lawsuit against the school and the alleged bully.

Giray, now 19 and a sophomore at Brandeis University, alleges a fellow student bullied him for years while they attended the Calhoun School, a prestigious institution on Manhattan’s Upper West Side. Giray’s suit names the bully and the school, which Giray claims was negligent, the New York Daily News reports.

So why did Giray wait eight years to sue the school and his alleged bully?

“Apparently they had spoken to an attorney at the time of the incident, who told them that filing a lawsuit like this could impact negatively on his ability to get into a college or university of his choice,” Eric Giray’s lawyer told New York’s 1010 WINS radio.

New York laws impose a three-year statute of limitations for civil personal-injury and negligence claims. But for injury victims who are children, the statute of limitations does not take effect until the child turns 18. So in Giray’s case, he had until age 21 to file his civil claims.

Giray’s alleged bully beating happened in October 2004, when classmate Daniel Dworakowski allegedly shoved Giray into the bleachers; Giray’s nose was broken and he got 18 stitches, according to the Daily News. Dworakowski also allegedly bullied Giray by calling him “gay” and making fun of Giray’s “elephant ears.”

Giray’s mother wrote an email to school administrators, who did not follow up, Giray’s lawsuit asserts. Calhoun School officials also failed to protect Giray and failed to institute an anti-bullying policy, the suit claims.

Alleged bully Dworakowski is now a sophomore at Cornell University. “Oh please, that was not a bullying,” Dworakowski’s mother told the Daily News. “A teacher told us it was an accident and nothing else.”

A jury may ultimately decide if she’s correct, or if Eric Giray’s alleged bully beating deserves compensation. But chances are Giray’s $1.5 million school-bullying lawsuit will be settled out of court.

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