The attorney for the Board of Education and Town of Wilton is asking for reconsideration of Judge Mary Elizabeth Sommer’s denial of a motion for summary judgment in a lawsuit brought by a family that claims their son was molested by a former school employee.

Sommer issued her denial on Aug. 2 in the lawsuit John Doe PPA v. Wilton Board of Education Et Al, in which the family alleges their son, who was 4 at the time, was molested by former Miller-Driscoll paraprofessional Eric Von Kohorn while a student in the preschool during the 2013-14 school year. The mother, father and child are plaintiffs in the suit filed Oct. 14, 2016.

The lawsuit alleges 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.

During this time period, Von Kohorn was the subject of a state police investigation and he was arrested Aug. 20, 2014, on charges of first-degree possession of child pornography and promoting a minor in an obscene performance. He pleaded guilty to one count of illegal possession of child pornography and was sentenced to six years in prison, suspended after two years, and 10 years of probation.

In his motion for summary judgment, the town’s attorney, Thomas R. Gerarde of Howd & Ludorf, LLC, of Hartford, argued 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.

There is an exception to that 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.”

Despite the fact another family alleged Von Kohorn molested their daughter prior to the incident with Boy Doe, the motion argued 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.”

The girl’s family also filed a lawsuit, which was settled in May 2018 before going to trial.

Sommer disagreed and in her denial said the boy “was clearly an identifiable victim.”

Gerarde’s motion to reargue and have the court reconsider the motion for summary judgment says the denial is contrary to Connecticut Supreme Court precedent.

It says that while the boy may have been identifiable, the harm allegedly done to him was not.

The motion says the alleged harm done to the girl in late 2012 could not be substantiated by the school’s investigation, Von Kohorn denied the allegation, and there were no witnesses. Therefore, it would not be apparent “that nude photographing would take place of a ‘typical peer’ child (Boy Doe had no disability) 9-15 months later…,” the motion says.

The motion says this is contrary to the teachings of the Supreme Court “that imminent harm does not equate to foreseeability.”

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.