School Immune to Own Bullying Policy, Denies Student Relief

If you have a question or concern about special education law, school administration, federal standards, or the overall rights of a student, please feel free to call the expert education law attorneys at Maya Murphy, P.C. in Westport today at (203) 221-3100 .

In the case of Antalik  v. Thomaston Board of Education, a student's parent, sued a board of education, a town, and its administrators, alleging negligence and failure to comply with the state-mandated bullying policy. The town and administrators moved to strike the negligence counts on grounds of governmental immunity, to strike the breach of state policy counts on grounds of sovereign immunity, and to strike the counts against the town because no claim was asserted against it. The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any party to state a claim upon which a court can grant relief. In the case at hand, the town and administrators argue that Connecticut municipalities are statutorily immune from negligence liability resulting from discretionary acts of their employees, officers and agents. Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. Liability may be imposed when 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. Thus, the "identifiable person-imminent harm" exception requires three elements: (1) an identifiable victim; (2) an imminent harm and; (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.

The parent alleged that the board, superintendent, and principal knew his child had been harassed at school; that they failed to protect her from a another child who kicked her during recess; that their conduct was negligent; and that they failed to comply with state bullying policy. The court held that as no cause of action had been alleged against the town, the claims against it had to be stricken. The complaint failed to allege facts showing that the harm was imminent and that it should have been apparent to defendants that their conduct likely subjected the student to the alleged harm. The harm could have potentially occurred at any time during the school day. Thus, defendants were entitled to qualified immunity on the negligence claim. The parent alleged defendants failed to implement and follow a bullying policy adopted under Connecticut law, and that sovereign immunity did not apply because the board acted on behalf of the town, not the state. The court held board and its employees were acting pursuant to a state-mandated activity set forth in Connecticut law. Thus, they were protected by the doctrine of sovereign immunity.

Defendants' motion to strike was granted in its entirety. “In the present case, the [child was] allegedly kicked . . . during a recess period. The complaint, however, does not allege facts showing the danger to the child were imminent” explained the court. “The harm in the present case could have potentially occurred any time that students traveled throughout the school or at any time during the school day. The alleged bullying and harassment must be limited to a particular site on school property which presents a particular imminent harm rather than one that extends throughout the school premises. Without these limitations, it cannot be said that the potential for harm to the [child] was significant and foreseeable within the meaning of a claim for negligence, even if, as [the child] alleges, the [school and its administrators] were aware of the alleged prior bullying.”

If you have a child with a disability and have questions about special education law, please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a free consultation.

Source: Antalik v. Thomaston Bd. of Educ., 2008 Conn. Super. LEXIS 2082 (Conn. Super. Ct. Aug. 13, 2008)