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A father wrongly accused of sexually abusing his daughter after her pre-kindergarten instructor allegedly taught her about “good and bad touching” has no legal recourse against the child’s school, the state Appellate Court has ruled. The 3-0 decision penned by Appellate Court Judge Peter T. Zarella affirmed a trial court ruling that had tossed out Herman Vogel’s complaint against Maimonides Academy of Western Connecticut on summary judgment. Vogel, who was never arrested and was cleared of any wrongdoing by the then-named state Department of Children and Youth Services, claimed that the private school in Danbury confused his three-and-a-half-year-old child when it allegedly instructed her on the difference between proper and improper touching. He sued Maimonides, contending that involving a child that young in such a program amounted to a tortious act of recklessness. The school denied that such a lesson was given in the girl’s class. The parties’ factual dispute, however, was rendered moot by the appeals court, which found the plaintiff’s claim to be one of educational malpractice-a cause of action not recognized in Connecticut. The blow is likely to prove fatal to Vogel’s bid to recover damages from what he considers to be the culprit behind his shattered life. His lawyer, Edward V. Walsh, of Maher & Murtha in Bridgeport, confirmed that his client is not planning to further appeal the decision, nor to move to have the case reargued en banc. TARNISHED REPUTATION In his May 1995 revised complaint against the school, Vogel alleged his daughter was taught about improper touching while enrolled there three years earlier. The program, he claimed, was designed for first- and second-graders, not three-year-olds. Shortly thereafter, Vogel was the subject of a DCYS investigation after his child vocalized words to her pre-kindergarten teacher about “daddy and touching.” Though the social worker who examined his daughter found that she was not exposed to any inappropriate sexual behavior, Vogel and his wife divorced, and his personal and professional reputations were irreparably tarnished, he claimed. His revised three-count complaint charged the school with invasion of privacy, intentional infliction of emotional distress and recklessness. In 1998, Bridgeport Superior Court Judge L. Scott Melville ruled in favor of the school’s motion for summary judgment on all three counts. In defending Maimonides on appeal, Christine S. Synodi, formerly of Danaher, Tedford, Lagnese & Neal in Hartford, argued that two public policy hurdles stood in the way of the suit’s success. Synodi has since opened her own firm, Synodi & Videll, in New London. First, the specter of protracted civil litigation would deter teachers, nurses and mental health workers from upholding their legal duty to report suspected instances of child abuse, she maintained in her brief to the Appellate Court. Furthermore, Synodi relied on a 1996 state Supreme Court ruling in Gutpa v. New Britain General Hospital in which the high court followed a well-established rule of law in other jurisdictions by not recognizing educational malpractice as a potential cause of action. DEEP WOUNDS STILL REMAIN In unsuccessfully attempting to navigate around Gutpa, Walsh compared the circumstances of Vogel’s case to that of the plaintiff in the high court’s more recent decision in Doe v. Yale University. In Doe, the plaintiff, a resident physician who contracted the AIDS virus as the result of a needle prick, claimed the university failed to provide her adequate training on techniques used to extract blood. The state Supreme Court upheld Doe’s negligence claim as a valid cause of action. But unlike in Doe, the Appellate Court ruled, the claims made in Vogel’s complaint “clearly allege” a breach of duty to educate effectively, not a common-law obligation not to cause physical injury by negligent conduct. Courts have long shied away from the “difficult, if not impossible” task of applying tort principals to academia and defining what constitutes a “reasonable educational program,” Zarella, in ruling against Vogel, reasoned to the concurrence of fellow Appellate Court judges Barry R. Schaller and Socrates H. Mihalakos. Battles over broad allegations about appropriate curriculum are “exactly what courts don’t want to be engaged in,” said Synodi in an interview. Even if Vogel had prevailed on summary judgment, he still would faced a steep challenge in proving that Maimonides owed a duty of care to a third party, she noted. Walsh, however, said the school shouldn’t be able to hide behind the veil of Gutpa. “Every time, I see [my client] he cries about this whole thing,” he maintained.

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