Summary
granting a teacher's motion to dismiss various negligence counts brought against him by a student who alleged improper touching because the alleged acts were taken within the scope of the teacher's employment, but denying the motion to dismiss those counts alleging wanton, reckless, and/or malicious conduct
Summary of this case from Goodwine v. State of Connecticut Dept. of Ch. FamOpinion
No. CV07-5001460S
August 25, 2008
MEMORANDUM OF DECISION
This tort action was commenced by Ashley David, and her mother, Sonia David-Hustus, and arises out of the alleged conduct of David Bureau towards Ashley David. The plaintiffs allege that Bureau, a teacher at H.H. Ellis Technical High School (school), touched Ms. David, then a student at the school, in a wrongful manner. Specifically, the plaintiffs allege that Bureau negligently, recklessly or intentionally touched David's right breast and pulled her into his lap. The plaintiffs further allege that this unwanted and wrongful touching occurred during school hours, in the room of another teacher at the school, and while the defendant Bureau was making comments of a sexual nature.
The plaintiffs commenced the action against defendant Bureau and a supervisor at the school, Brian Mignault, by serving each defendant with a writ, summons and complaint in May of 2007. The eight-count complaint alleges: (1) negligent infliction of emotional distress by Bureau against David; (2) intentional infliction of emotional distress by Bureau against David; (3) negligence by Bureau against David; (4) recklessness by Bureau against David; (5) assault and battery by Bureau against David; (6) negligence by Mignault against David; (7) willful, reckless and wanton misconduct by Mignault against David; and (8) negligent infliction of emotional distress by Bureau against David-Hustus.
There is some question as to what supervisory position defendant Mignault held at the time of the alleged incident, but the issue is immaterial for purposes of this motion.
The defendants filed motions to dismiss for lack of subject matter jurisdiction on December 3 and 4, 2007. The first motion (#104), was filed by Bureau in his individual capacity, and requests dismissal of counts one, two, three, four and five, on the ground that Bureau is a state employee protected by statutory sovereign immunity pursuant to General Statutes § 4-165. The second motion (#105), was filed by the state on behalf of both defendants in their official capacities, as well as Mignault in his individual capacity. The state also moves for dismissal pursuant to § 4-165 and on sovereign immunity grounds, and argues specifically that counts one, two, three, six and eight should be dismissed because the defendants are immune from suits not alleging "wanton, reckless or malicious conduct" and because sovereign immunity precludes the imposition of money damages against the defendants in their official capacity.
The plaintiffs filed an objection to the motions to dismiss on December 7, 2007, and an accompanying memorandum of law on April 7, 2008. The plaintiffs argue that exceptions to sovereign immunity apply to this action, including exceptions for wanton, reckless or malicious conduct and an exception for conduct in excess of statutory authority or outside the scope of employment. The plaintiffs also argue that the defendants may be liable under General Statutes § 52-557n or General Statutes § 52-557d. Defendant Bureau filed a supplemental memorandum of law in support of his motion on April 25, 2008, arguing that §§ 52-557d and 52-557n are inapplicable in this action, and reiterating his argument for the application of § 4-165. The state, on behalf of both defendants, filed a reply in support of its motion on April 28, 2008, repeating the arguments made by defendant Bureau in his individual capacity and countering the plaintiffs' arguments regarding the exceptions to sovereign immunity. At the hearing on the motions on May 19, 2008, the plaintiffs withdrew their claims against defendant Mignault, thereby eliminating the need for this court to address arguments relating to counts six and seven.
DISCUSSION 1. Standard of Review
"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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians, 282 Conn. 130, 134, 918 A.2d 880 (2007).
2. Sovereign Immunity
The state cannot be sued without its consent and because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). As Mr. Justice Holmes wrote: `A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that nukes the law on which the right depends.'" (Citations omitted; internal quotation marks omitted.) Id., 314.
"[A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity; . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citation omitted.) Id., 314. "[O]n 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." Id., 318. "[B]efore determining whether and to what extent the defendants are shielded by the statutory immunity provided by [General Statutes] § 4-165, it is appropriate to determine whether the claims against them are barred by the common-law doctrine of sovereign immunity." Shay v. Rossi, 253 Conn. 134, 162-63, 749 A.2d 1147 (2000), overruled in part on other grounds, Miller v. Egan, 265 Conn. 301, 325-27, 828 A.2d 549 (2003).
Shay was overturned in part by Miller v. Egan, supra, 265 Conn. 325, but only to the extent that it held "that sovereign immunity does not bar monetary damages actions against state officials acting in excess of their statutory authority."
If the plaintiffs are deemed to be suing the defendant in his official capacity for money damages, the claims must be dismissed on the ground that the claims are barred by sovereign immunity. The plaintiffs argue in their memorandum in opposition to the motion to dismiss that the defendant was acting in excess of his statutory authority. This argument has no merit insofar as it attempts to impute liability for money damages on the state without a waiver from the claims commissioner. Miller v. Egan, supra 265 Conn. 318. Furthermore, the plaintiffs have not pointed to any statutes under which the state might be interpreted to have waived sovereign immunity. The state's motion to dismiss (#105) should be granted.
In their memorandum in opposition, the plaintiffs raise, for the first time, the argument that General Statutes §§ 52-557n and 52-557d provide a waiver of sovereign immunity. These statutes are inapplicable to this action at this time. Section 52-557n applies to municipal employees, not state employees. Section 52-557d is irrelevant in that it is a tolling statute and does not pertain to this motion to dismiss based on sovereign immunity.
The plaintiffs, however, also argue in their memorandum in opposition that they are suing the defendant in his individual capacity. "If the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims." Id., 307. "The determination of whether the plaintiff's complaint alleged claims against the defendants in their individual capacities is governed by the test set forth in Spring v. Constantine, 168 Conn. 563, 568, 362 A.2d 871 (1975). In Spring, the plaintiff brought an action against the individual defendant, a public defender, in his individual capacity. The attorney general appeared on behalf of the defendant and asserted that sovereign immunity barred the action. The court agreed with the attorney general that `[t]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . The vital test is to be found in the essential nature and effect of the proceeding.' . . . The court then set forth four criteria to determine whether an action is in effect, one against the state and cannot be maintained without its consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 308.
The first two criteria of the Spring test are met. The third criterion is less clear. Unlike the plaintiffs in Miller v. Egan, the plaintiffs in this case have clearly argued in their objection to the motion to dismiss "that [their] complaint had brought claims against the individual defendants, not only in their official capacities, but also in their individual capacities." See id., 309-10 (granting motion to dismiss because plaintiff failed to argue that his complaint sought relief from defendants individually despite numerous opportunities to do so); see also Kemper Auto and Home Ins. Co. v. State, Superior Court, judicial district of New London, Docket No. 569339 (January 24, 2005, Hurley, J.T.R.). On the other hand, the plaintiffs base their counts in part on the student-teacher relationship, implying that the school setting played a role in making the alleged conduct worse or that the acts would not necessarily have been as damaging if the defendant was not "in a position of authority, responsibility, confidence and trust with respect to the plaintiff." Complaint, count one, paragraph four.
With regard to the fourth criterion, the state cannot be liable for damages without a waiver by the claims commissioner, and therefore the question for the court, pursuant to Spring, is whether a judgment against the defendant would "operate to control the activities of the state or subject it to liability." Because a judgment for damages against the defendant would be against the defendant alone — the state indemnification statute, General Statutes § 5-141d, is inapplicable for reasons discussed in Part 3 — it would not operate to control the activities of the state or subject the state to liability. Based on the Spring test, the plaintiffs' claims are reasonably construed to be directed against the defendant in his individual capacity, as the plaintiffs have argued to the court. The claims are not barred by sovereign immunity. This conclusion, however, does not complete the analysis, for "where a state official is sued in both her official and individual capacities, if sovereign immunity does not apply to the claim against her in her official capacity, the statutory immunity may then apply to the claim against her in her individual capacity." Shay v. Rossi, supra, 253 Conn. 162.
3. Statutory Immunity
"General Statutes § 4-165 . . . provides in relevant part: `No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his 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 . . .' In other words, state employees may not be held personally liable for their negligent actions performed within the scope of their employment. This provision of statutory immunity to state employees has a twofold purpose. First, the legislature sought to avoid placing a burden upon state employment. Second, § 4-165 makes clear that the remedy available to plaintiffs who have suffered harm from the negligent actions of a state employee who acted in the scope of his or her employment must bring a claim against the state `under the provisions of this chapter,' namely, chapter 53 of the General Statutes, which governs the office of the claims commissioner. State employees do not, however, have statutory immunity for wanton, reckless or malicious actions, or for actions not performed within the scope of their employment. For those actions, they may be held personally liable, and a plaintiff who has been injured by such actions is free to bring an action against the individual employee." Miller v. Egan, supra, 265 Conn. 318-19. "In the posture of this case, we examine the pleadings to decide if the plaintiff has alleged sufficient facts, with respect to personal immunity under § 4-165, to support a conclusion that the defendant [was] acting outside the scope of [his] employment or willfully or maliciously . . . The question before us, therefore, is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive a motion to dismiss on the ground of statutory immunity." (Citation omitted; internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).
Exception (A): Wanton, Reckless or Malicious CT Page 14199
The Supreme Court has "never definitively determined the meaning of wanton, reckless or malicious as used in § 4-165. In the common-law context, however, we have stated: In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . Indeed, in some instances, the mere fact that an official has acted in excess of his or her authority may suffice to prove that the conduct was wanton, reckless or malicious." (Internal quotation marks omitted.) Martin v. Brady, supra, 261 Conn. 379.Count two alleges intentional infliction of emotional distress, count four alleges recklessness, and count five alleges assault and battery. Viewed in the light most favorable to the plaintiffs, the pleadings in counts two and five allege facts sufficient to survive a motion to dismiss on the ground of statutory immunity. Count four, while labeled "recklessness," does not plead any facts distinct from count three, which sounds in negligence. In paragraph eight of count four, the, plaintiff alleges that the defendant "failed to control his arms in such a manner as to avoid physical contact with a student," "failed to use proper caution to avoid inappropriate contact with the plaintiff's breast," "failed to use proper caution to avoid inappropriate contact with the plaintiff's waist," and other similar conduct. These allegations are not "more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others." Id. Furthermore, in paragraph nine of count four, the plaintiff states that "[a]s a result of the Defendant's negligence and carelessness, the Plaintiff, Ashley David, suffered severe emotional distress." (Emphasis added.) These allegations, which do not differ in any material way from the third count sounding in negligence, do not sufficiently plead reckless conduct. As the fourth count merely duplicates the allegations in the third count, it may be treated as an allegation of negligence and is subject to the same statutory immunity considerations as the negligence counts.
Exception (B): Outside the Scope of Employment CT Page 14200
"In order to determine if a state actor's conduct is caused in the discharge of his or her duties or within the granted statutory authority, it is necessary to examine the nature of the alleged conduct and its relationship to the duties incidental to the employment. In Antinerella v. Rioux, [ 229 Conn. 479, 499, 642 A.2d 699 (1994)], we held that the high sheriff's discharge of the plaintiff, although pursuant to the authority granted to the high sheriff by . . . [statute], was actually wrongful conduct because it was conducted in furtherance of an illegal fee splitting scheme and, as such, was a misuse of the authority granted to him . . . The defendant's alleged conduct was not designed to advance any interest of his employer, the state, and did not serve any legitimate state interest. Rather, the defendant's alleged actions were motivated by purely personal considerations entirely extraneous to his employer's interest . . ."[I]n Shay v. Rossi, 253 Conn. 134, 174, 749 A.2d 1147 (2000), we determined that the defendants, individuals employed by the state department of children and families, had acted beyond the scope of their employment when acting `solely . . . to justify their own prior unjustified conduct, and not to carry out the government policy with which they were entrusted . . .' The plaintiffs in Shay alleged that the defendants' conclusion that neglect and abuse of the [plaintiffs'] children had been confirmed was without foundation, unreasonable, arbitrary, wilful, wanton, reckless and malicious, and designed to vindicate and legiti[mize] their handling of the [plaintiffs'] case which was, from the outset, unlawful, uncaring, and unnecessary . . . We concluded that the defendants' `improper and self-serving motives' were provable under these allegations and that such conduct was beyond the ambit of the employment context and, accordingly, not protected by sovereign immunity." (Citations omitted; internal quotation marks omitted.) Martin v. Brady, supra, 261 Conn. 377-78.
The plaintiff has failed to sufficiently plead that the defendant's conduct occurred outside the scope of employment. The defendant's alleged conduct occurred during school hours and on school grounds. Teachers and students regularly come into physical contact with each other during school hours, and teachers regularly interact with students in other teachers' classrooms. The plaintiff's argument that the alleged conduct occurred outside the scope of employment because it occurred in another teacher's classroom is unavailing. To hold a teacher personally responsible for incidental contact with students during school hours and on school grounds would encourage frivolous lawsuits by disgruntled students or parents and would inhibit teachers from furthering the state's interest in educating its citizens. To the extent that the plaintiffs have pleaded reckless or intentional conduct, those counts are properly before the court and beyond the scope of statutory sovereign immunity. Contact with students, however, is incidental to the duties of a teacher, and to the extent that such contact is merely negligent, as opposed to intentional contact made with improper and self-serving motives, it cannot be the basis of a lawsuit against a state employee. The defendant's motion to dismiss counts one, three, four and eight, all of which sound in negligence, are granted.
CONCLUSION
For the forgoing reasons, the state's motion to dismiss (#105) is granted in its entirety, and Bureau's motion to dismiss (#104) is granted as to counts one, three, four, and eight, and denied as to counts two and five. The surviving counts in this action are for intentional infliction of emotional distress and assault and battery against Bureau in his individual capacity.