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*********************************************** 
TATAYANA OSBORN ET AL. v. CITY OF

WATERBURY ET AL.

(AC 39574)

Lavine, Prescott and Harper, Js.

Syllabus

The plaintiff mother brought this action on her own behalf and on behalf

of her minor child, T, to recover damages for personal injuries that T

sustained when she was assaulted by other students during a lunchtime

recess at her elementary school. The matter was tried to the court,

which rendered judgment in favor of the plaintiffs. The defendants, the

city of Waterbury and the Waterbury Board of Education, appealed to

this court, claiming, inter alia, that the trial court improperly determined,

in the absence of expert testimony, that one student intern and three

or four staff members were insufficient to control as many as four

hundred students on the playground. Held that the trial court improperly

rendered judgment in favor of the defendants, as the plaintiffs were

required to present expert testimony as to the standard of care applicable

to the defendants under the circumstances; because the policies and

procedures of our public school system are highly regulated by governing

bodies and accreditation organizations, and the standards are set by

professionals, the standard of care regarding the number of supervisors

needed to ensure the safety of elementary school students on a playground was not a matter of common knowledge and, thus, under those

circumstances, the plaintiffs were required to produce expert testimony

on the standard of care and to show how the defendants breached that

standard, which the plaintiffs failed to do.

Argued February 5—officially released April 17, 2018

Procedural History

Action to recover damages for personal injuries sustained by the named plaintiff as a result of the defendants’ alleged negligence, and for other relief, brought

to the Superior Court in the judicial district of Waterbury, where the action as withdrawn as to the defendants Charles Stango et al.; thereafter, the matter was

tried to the court, Hon. Barbara J. Sheedy, judge trial

referee; judgment for the plaintiffs, from which the

named defendant et al. appealed to this court; subsequently, the court, Hon. Barbara J. Sheedy, judge trial

referee, issued an articulation of its decision, and the

defendant Danielle Avalos et al. withdrew their appeal.

Reversed; judgment directed.

Daniel J. Foster, corporation counsel, for the appellants (named defendant et al.)

Richard M. Franchi, for the appellees (plaintiffs).
Opinion

LAVINE, J. This personal injury action concerns the

injuries the minor plaintiff, Tatayana Osborn (child),1

sustained during a lunchtime recess at her elementary

school. The defendants, the city of Waterbury (city)

and the Waterbury Board of Education (board), appeal

from the judgment of the trial court rendered in favor

of the plaintiffs.2 On appeal, the defendants claim that

the trial court improperly (1) rejected their special

defense of governmental immunity for discretionary

acts, (2) concluded that the plaintiffs’ injuries were

caused when an inadequate number of adults were

assigned to supervise up to 400 students when there was

evidence that there were no more than fifty students

on the playground, (3) found in the absence of expert

testimony that one student intern and three or four staff

members were insufficient to control as many as 400

students on the playground, and (4) awarded damages

intended to encourage continued therapy and occupational training for the child in the absence of evidence

that she would need such services in the future. We

agree with the defendants’ third claim and conclude,

as a matter of law, that without expert testimony, the

court could not properly have found that the defendants

breached their duty of care to the child because there

was an inadequate number of adults on the playground

to supervise the students at the time the child was

injured. We, therefore, reverse the judgment of the

trial court.3

The following facts are relevant to our resolution of

the defendants’ appeal. On April 25, 2012, the child was

an elementary school student when she was assaulted

by other students while they were on the playground

during the lunchtime recess. As a result of the assault,

the child sustained a cut to her face that required

sutures to repair and resulted in scarring. The plaintiffs

commenced the present action against the city, the

board, the president of the board, and several members

of the school staff. See footnote 2 of this opinion. The

plaintiffs alleged, among other things, that certain members of the school staff were careless and negligent in

failing to supervise the students on the playground and

protect the child from injury. As to the city, the plaintiffs

alleged, in part, that the child was an identifiable victim

and that the city owed her a duty to protect her safety

on school premises. As to the board, the plaintiffs

alleged, in part, that the board was responsible for

establishing and enforcing policies regarding the education and safety of students such as the child by hiring

and training school staff to protect the students’ safety.

As a result of the defendants’ claimed breach of duty,

the child suffered lacerations to her nose and cheek,

which resulted in scarring, among other things. The

defendants denied the allegations of negligence and

asserted three special defenses.4
The parties tried the case to the court. Following the

presentation of evidence, the court issued a memorandum of decision in which it found that the child was a

fifth grade student at Sprague Elementary School in

Waterbury when she was assaulted by two or more

students on the playground. The playground was surrounded by brick walls and fencing, and following

lunch, students occupied the area for play and exercise.

More specifically, the child was surrounded by a circle

of students who physically assaulted her and pushed

her into a stone wall, causing injuries to her nose and

cheek with resulting facial scarring. The child experienced post-traumatic headaches for a sustained period

of time, but the most serious effect of this schoolyard

assault was its lingering effect on the child’s emerging

personality and self-image.

The court also found that Danielle Avalos, a school

paraprofessional, was assigned to monitor the students

on the playground during recess. She was not provided

with written documents that listed her duties during

the lunchtime recess. Her two day professional development training occurred prior to the first day of school

and focused on the forms of student bullying and the

need to distinguish between bullying and students

merely ‘‘picking on’’ other students or otherwise being

unkind to them. At the time of the incident, classroom

teachers were on luncheon recess.5 The court ‘‘conclude[d]’’ that one student intern and three or four staff

members were not sufficient to exercise control over

as many as 400 students on the playground.

With respect to the incident during which the child

was injured, the court found that Avalos saw a student

repeatedly punch the child in the face and push her

into a wall. A precis prepared by the nursing division of

the Waterbury Health Department referenced, ‘‘a large,

deep cut on the [child’s] left cheek’’ and ‘‘a cut of lesser

depth on the bridge of her nose.’’ The court found that,

at trial, it was clear the child was conscious of her facial

scarring and that she considered that scarring to be her

primary, perhaps only, sequela of the incident. The scars

have diminished significantly. The court’s review of the

exhibits persuaded it that the most serious of her injuries was the effect the incident has had on the child’s

behavior. Since the incident, the child has demonstrated

unpleasant, even rude, behavior in the presence of family and other caregivers. She acts out, and the suggestion

is strong that she presents at school as unfriendly, perhaps even hostile. It was the court’s view that the child

would benefit from additional behavioral counseling.

The court stated that its substantial award was intended

to encourage continued therapy and occupational training for the child.

Although the plaintiffs’ counsel did not provide the

court with a list of medical expenses incurred, the court

reviewed all of the exhibits and concluded that the
medical expenses were $7090.47. The court stated that,

although no evidence was offered to support an ongoing

need for continued therapy in any form, its award would

permit the same should the family determine future

treatment is desirable for the child. The court did not

award damages for permanency in the absence of medical testimony in support of it. The court entered judgment in favor of the plaintiffs in the amount of

$67,090.47.

The dispositive claim in this appeal is whether the

court improperly concluded that ‘‘one . . . student

intern and three . . . or four . . . staff members were

not sufficient to exercise proper control over perhaps

as many as . . . (400) students’’ where there was no

evidence that any defendant breached the pertinent

standard of care. The defendants argue on appeal that

the plaintiffs failed to produce any evidence, let alone

expert testimony, that the pertinent standard of care

required more than four or five adults to monitor students on the playground and therefore the court’s finding that the defendants breached the standard of care

was clearly erroneous. We agree with the defendants

that the plaintiffs were required to present expert testimony as to the standard of care applicable to the defendants under the circumstances.

‘‘The essential elements of a cause of action in negligence are well established: duty; breach of that duty;

causation; and actual injury. . . . Contained within the

first element, duty, there are two distinct considerations. . . . First, it is necessary to determine the existence of a duty, and [second], if one is found, it is

necessary to evaluate the scope of that duty. . . . We

sometimes refer to the scope of that duty as the requisite

standard of care.’’ (Internal quotation marks omitted.)

Utica Mutual Ins. Co. v. Precision Mechanical Services, Inc., 122 Conn. App. 448, 454, 998 A.2d 1228, cert.

denied, 298 Conn. 926, 5 A.3d 487 (2010).

The question of whether a duty exists is a question

of law over which we exercise plenary review. LePage

v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002). Professional negligence ‘‘is frequently defined as the failure

of one rendering professional services to exercise the

degree of skill and learning commonly applied under

all the circumstances in the community by the average

prudent reputable member of the profession with the

result of injury, loss, or damage to the recipient of those

services . . . .’’ (Internal quotation marks omitted.)

Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App.

368, 375, 889 A.2d 829 (2006).

‘‘In a negligence action . . . expert testimony will

be required [i]f the determination of the standard of

care requires knowledge that is beyond the experience

of a normal fact finder . . . . The requirement of

expert testimony . . . serves to assist lay people, such

as members of the jury and the presiding judge, to
understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard

. . . . [A]lthough expert testimony may be admissible

in many instances, it is required only when the question

involved goes beyond the field of the ordinary knowledge and experience of the tier of fact.’’ (Footnotes

omitted; internal quotation marks omitted.) Brye v.

State, 147 Conn. App. 173, 181–82, 81 A.3d 1198 (2013).

We conclude, as a matter of law, that the standard

of care regarding the number of supervisors needed to

ensure the safety of elementary school students on a

playground is not a matter of common knowledge; far

from it. The policies and procedures of our public

school system are highly regulated by governing bodies

and accreditation organizations. School teachers and

administrators are required to be accredited in accordance with educational standards. The plaintiffs themselves alleged that, under the laws of the state, the city

is charged with the control and supervision of students

in elementary schools. As to the board, the plaintiffs

alleged that it was responsible for establishing and

enforcing its policies, regulations and procedures

regarding the education and safety of students such

as the plaintiff. The standards, therefore, are set by

professionals and are not within the common knowledge of the general public. A judge’s subjective view

on the subject is far from sufficient.

In their appellate brief, the plaintiffs argue that the

need for expert testimony was not brought to the attention of the court. That argument is unpersuasive given

the record6 and the law. The plaintiffs were required

to produce expert testimony on the standard of care

and to prove that the defendants’ conduct did not measure up to that standard. See Buckley v. Lovallo, 2 Conn.

App. 579, 582–83, 481 A.2d 1286 (1984) (failure of hospital to have written rules for its conduct was insufficient

to establish violation of standard of care in absence of

proper showing that having such rules was standard

practice).7

In the present case, the plaintiffs failed to present

expert testimony as to the standard of care related to

the number of supervisors needed on an elementary

school playground to ensure the safety of the students

during recess. The plaintiffs also failed to present expert

testimony that the number of staff on the playground

supervising the children at the time the child was

injured constituted a breach of the standard of care.

For the foregoing reasons, the court erred as a matter

of law in rendering judgment for the plaintiffs.

The judgment is reversed and the case is remanded

with direction to render judgment for the defendants.

In this opinion the other judges concurred.

1 The child commenced the present action by and through her mother

Tacarra Smith. Smith also alleged that she sustained damages as a result

of the child’s injuries. We refer to Smith and Osborn as the plaintiffs.
2 The plaintiffs also brought this action against Stephanie Pascale, a fifth

grade teacher; Charles Stango, the president of the board; Danielle Avalos,

a paraprofessional at the school; and Donna Perrealt, the school principal.

They withdrew the action against Pascale and Stango in the trial court. In

its articulation, the court clarified that it did not find that Avalos and Perrealt

were liable for the plaintiffs’ injuries. Avalos and Perrealt, therefore, withdrew from the present appeal. In this opinion, we refer to the city and board

as the defendants.

3 Because we resolve the appeal on the ground that the court improperly

concluded that there was an insufficient number of staff on the playground

to ensure the safety of students, we need not address the remainder of the

defendants’ claims.

4 The special defenses were as follows: (1) municipal employees of the

state are entitled to qualified immunity for the performance of discretionary

duties; (2) the city is entitled to governmental immunity pursuant to General

Statutes § 52-557n (a) (2) (B); and (3) members of municipal boards who

are not compensated for such membership are entitled to immunity for any

error or omission made in the exercise of such person’s policy or decisionmaking responsibilities pursuant to § 52-557n (c).

5 The court found no evidence to establish that staff lunch times were

staggered. It also found no evidence to suggest that only some members of

the student body were released from lunch at a given time. The court found

it more likely that the student body ate together in the lunchroom and then

went outside for recreation in large numbers. On appeal, the defendants

dispute the court’s findings regarding staggered lunches and the release of

students to the playground. They cite testimony to the contrary, e.g., Avalos

thought that there were no more than fifty students on the playground at

the time of the subject incident. We need not decide whether the court’s

findings with respect to staggered lunches and release to the playground

are clearly erroneous as we reverse the court’s judgment on the basis of

its conclusion that there was an insufficient number of staff supervising the

students on the playground at the time of the incident.

6 During final argument before the trial court, the following exchange

took place between counsel for the defendants and the court.

‘‘[The Defendants’ Counsel]: There’s been no evidence by anyone—by

the plaintiff indicating that—or showing that—how many individuals on a

playground would necessarily make it safe. There’s been no expert testimony

regarding that.

‘‘The Court: Well, I agree with you on that. I don’t know that it’s necessary, however.’’

7 The plaintiffs also argue on appeal that the defendants could be found

negligent pursuant to statute or policy and that there was testimony regarding a board policy that there was to be one staff member for every 125

students on the playground. The written policy, however, was not admitted

into evidence, and the court made no finding in that regard.

In the context of medical malpractice actions, our Supreme Court has

stated that institutional ‘‘rules, regulations and policies do not themselves

establish the standard of care.’’ Van Steensburg v. Lawrence & Memorial

Hospitals, 194 Conn. 500, 506, 481 A.2d 759 (1984); see also Baxter v.

Cardiology Associates of New Haven, P.C., 46 Conn. App. 377, 390–91, 699

A.2d 271 (affirming trial court’s exclusion, on relevancy grounds, of evidence

related to procedures followed by hospital personnel for obtaining blood

and stating evidence ‘‘would be relevant only if it was later supported by

expert testimony that a cardiologist would rely on a resident to order blood

on an expeditious basis’’), cert. denied, 243 Conn. 933, 702 A.2d 640 (1997).

We need not reach the question of whether such cases are applicable in a

suit against a municipality. In the present case, the trial court made no

finding as to the standard of care on the basis of school policy.