A Stamford Superior Court judge has denied “in its entirety” the town of Wilton’s and Board of Education’s motion for summary judgment in a lawsuit brought by a family that claims their son was molested by a former school employee.

The family in the lawsuit, John Doe PPA v. Wilton Board of Education Et Al, alleges their son, who was 4 at the time, was molested by former Miller-Driscoll paraprofessional Eric Von Kohorn during the 2013-14 school year. The mother, father and child are plaintiffs in the suit filed Oct. 14, 2016.

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 and was assigned to Boy Doe’s classroom. The girl’s family brought a complaint, Girl Doe PPA v. Wilton Board of Education Et Al, which was settled in May 2018 before going to trial.

The motion for summary judgment in the Boy Doe lawsuit was filed May 2, 2018. It was argued before the court on April 8, 2019.

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 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.

Denial

Judge Mary Elizabeth Sommer disagreed and issued her denial on Aug. 2.

In her decision, Sommer found the boy was “clearly an identifiable victim.” Courts, she said, have recognized children attending public school during school hours as foreseeable victims because:

 Children are to benefit from care imposed by law on school officials.

 They are legally required to attend school.

 Their parents are required to relinquish custody to school officials during those hours.

 “As a matter of policy, they traditionally require special consideration in the face of dangerous conditions.

Sommer also found that Boy Doe was in imminent harm based on the testimony of numerous school officials in the Girl Doe lawsuit who admitted that when Von Kohorn took the girl into the bathroom alone, the situation posed an imminent threat to her well-being. It should have been apparent, she wrote, that when Von Kohorn took the boy alone into the bathroom, it placed the boy at risk.

Finally, she found that given the incident with Girl Doe, school officials were “sufficiently apprised that their acts and omissions could result in a repeat occurrence with Von Kohorn and a different student.”

In September 2018, the boy’s family, through their attorney Paul A. Slager, put forth a compromise in which the child would receive $5 million and his parents would each receive $150,000.

A jury trial has been set for Dec. 11, 2019.