Attorneys for the town of Wilton and Board of Education have submitted a motion for summary judgment in a second lawsuit alleging a preschool child was molested by former paraprofessional Eric Von Kohorn.

The motion was filed with Superior Court in Stamford on May 2 by Thomas R. Gerarde of Howd & Ludorf, LLC of Hartford.

In the suit of John Doe, PPA Mother Doe, Et Al., the defendants claim governmental immunity.

The complaint was filed Oct. 14, 2016, on behalf of a preschool student at Miller-Driscoll School who was 4 during the 2013-14 school year. His parents are also plaintiffs.

While at school, the boy was fully toilet trained. Despite that, the complaint alleges, Von Kohorn regularly took the boy alone into the school bathroom, in violation of the school’s toileting policy.

At a time not specified in the complaint, it says that during the winter/spring semester of the 2013-14 school year, Von Kohorn sexually exploited the boy by taking digital photographs of him while his pants were down in the bathroom, resulting in extensive permanent emotional and psychological injuries to the boy.

This occurred after preschool director Fred Rapczynski had been notified of and investigated a 2012 complaint alleging Von Kohorn had sexually molested a girl student in the preschool. Von Kohorn continued to be employed at the school. The girl’s family has brought a complaint, Girl Doe PPA v. Wilton Board of Education Et Al. A trial date has been set for May 23, but attorneys have said the case is likely to be settled.

Under circumstances unrelated to the lawsuit, Von Kohorn was arrested in August 2014 on charges of first-degree possession of child pornogrpahy and promoting a minor in an obscene performance. After pleading guilty to one count of illegal possession of child pornography in the second degree, he was sentenced in October 2015 to six years in prison, suspended after two years, and 10 years probation. He has since been released from prison.
Motion for summary judgment
According to a memorandum in support of the motion for summary judgment, immunity shields municipalities from liability for discretionary acts in the performance of public duties. Further, the motion says in Connecticut the duty to supervise school children is a discretionary governmental duty, as is the supervision of public school employees.

Also discretionary, it says, is any obligation the Board of Education or its employees had in reaching a conclusion about Girl Doe’s complaint or disciplining Von Kohorn.

The memorandum also asserts that no school district employee was aware of Von Kohorn allegedly violating the school’s toileting policy by taking Boy Doe alone into the bathroom.

There is an exception to immunity when there is “imminent harm” to an “identifiable victim” and a “public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.” The memorandum says this suit does not meet that standard because, among other instances, Von Kohorn’s “suspected exploitive photographing of Boy Doe was not a certain to happen immediately, or even at all.” Also, it says any shortcomings in Rapczynski’s investigation did not present a dangerous situation that merited an immediate response.

The complaint alleges emotional distress to the boy’s parents, but defendants claim the Board of Education did not owe a duty to them.

At this time, jury selection and trial is scheduled for Oct. 24.