Opinion
No. CV 07 5003099S
July 14, 2008
MEMORANDUM OF DECISION
Before the court is the state's motion to dismiss an action brought by a legal guardian against the foster parents of two minor children. The plaintiff alleges that the foster parents were negligent in allowing their eight-year-old biological child to operate an all-terrain vehicle on their property. She alleges that one of the minor children was severely injured as a result of being struck by the all-terrain vehicle being operated by the eight-year-old child. Additionally, she alleges that the other minor witnessed the incident and suffered emotional distress as a result. The defendants move to dismiss the complaint on the grounds that the court lacks subject matter jurisdiction over this case because, as foster parents, they are immune from suit pursuant to sovereign immunity and to statutory immunity. The plaintiff objects to the defendants' motion and has filed a motion for leave to amend the complaint. In her objection, the plaintiff suggests that the court grant the request to amend prior to deciding the motion to dismiss. The defendants object to the plaintiff's motion to amend.
Discussion
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." Town of Bloomfield v. United Elec., 285 Conn. 278, 286, 929 A.2d 561 (2008). "Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case . . ." Baker v. Commissioner of Correction, 91 Conn.App. 855, 859, 882 A.2d 1238 (2005). "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) CT Page 11606 Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "The rule in this state is that once subject matter jurisdiction has been raised through a motion to dismiss, it is plain error for the court to attend to any other issues prior to deciding the fundamental jurisdictional issues at hand." Imperial Tents v. Imperial Shows, Docket No. CVM-NNI CV06-4006614 (Apr. 20, 2007; Rubinow, J.) [ 43 Conn. L. Rptr. 357]. See Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6, 826 A.2d 1102 (2003); Federal Deposit Insurance Corp. v. Peabody NE, Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996). For the foregoing reasons, the court cannot consider the plaintiff's request to amend the complaint or the proposed amended complaint prior to deciding the jurisdictional question.
In Hunte v. Blumenthal, 238 Conn. 146, 680 A.2d 1231 (1996), the sole issue for the court was whether, pursuant to General Statutes §§ 4-165 and 5-141d, foster parents qualify as "employees" of the state rather than independent contractors. The court determined that foster parents are employees of the state as that term is used in §§ 4-165 and 5-141d and thus are entitled to defense and indemnification: "Construed together, these two statutes protect state employees acting within the legitimate scope of their employment from personal liability for negligence." Id., 151.
C.G.S. § 4-165 provides, in relevant part: a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.
C.G.S. § 5-141d provides, inter alia, for indemnification of a state employee by the state "in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer, employee or member was acting in the discharge of his duties or in the scope of his employment . . ."
The plaintiff argues first that the defendants are not entitled to statutory immunity because the foster parents were not acting within the legitimate scope of their employment in that they were not supervising the children in their care. The basis for the plaintiff's claim is that the foster parents did not witness the incident and that they allowed the eight-year-old to operate the all-terrain vehicle. In Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003), the Connecticut Supreme Court, dealing with a claim that state employees acted outside the scope of employment, held: "The legislative history and purpose of chapter 53 of the General Statutes General Statutes §§ 4-141 through 4-165; titled `Claims Against the State,' as well as the comprehensive nature of the statutory scheme, support our conclusion that, on a claim for money damages, regardless of whether the plaintiffs have alleged that state officers acted in excess of statutory authority, the plaintiffs must seek a waiver from the claims commissioner before bringing an action against the state in the Superior Court." (Emphasis added.) Id., 318.
The plaintiff next argues that the foster parents cannot be protected by the concept of parental immunity. Both parties point out that the rationale underlying parental immunity as enunciated in Ascuitto v. Farricielli, 244 Conn. 692, 711 A.2d 708 (1998), is the preservation of family harmony and the protection of the parent-child relationship. However C.G.S. § 17a-114a specifically grants the immunity biological parents enjoy to the defendants as foster parents. Moreover, the vehicle the child operated was not a motor vehicle for the purpose of the exception. See Norfolk Dedham Mutual Fire Ins. Co. v. Wysocki, 45 Conn.Sup. 144, 150, 702 A.2d 675 (1996) [ 17 Conn. L. Rptr. 293]; see also C.G.S. § 14-379.
C.G.S. § 17a-114a provides that "[a] person licensed or certified pursuant to section 17a-114 shall be liable for any act or omission resulting in personal injury to a child placed in his care by the Commissioner of Children and Families to the same extent as a biological parent is liable for any act or omission resulting in personal injury to a biological child in his care."
C.G.S. § 14-379 provides, in relevant part: "`All-terrain vehicle' means a self-propelled vehicle designed to travel over unimproved terrain and which has been determined by the Commissioner of Motor Vehicles to be unsuitable for operation on the public highways which is not eligible for registration under chapter 246 . . ."
Conclusion
For the foregoing reasons, the court determines that it lacks subject-matter jurisdiction, and the case is dismissed.