Opinion
No. CV 04 0524888 S
May 27, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
For all times pertinent hereto, the plaintiff Robert G. Mendela was employed as a police officer with the town of Bristol Police Department. The defendant Timothy O'Hanlon was employed as a state trooper with the State of Connecticut Department of Public Safety, Division of State Police. The second named defendant is the State of Connecticut.
The plaintiff alleges in his complaint: On May 18, 1996 at approximately 11:40 p.m., he was shot in the left foot by State Trooper Timothy O'Hanlon while effectuating the arrest of an armed suspect in Bristol, Connecticut. More specifically, the plaintiff alleges that immediately after handcuffing the suspect, or while in the process of handcuffing the suspect, O'Hanlon's submachine gun fired a round that struck the plaintiff in the foot causing the claimed injuries.
The plaintiff avers that the negligence and carelessness of O'Hanlon caused his injuries in one or more of the following ways:
(a) In that he approached a suspect in order to handcuff him while armed with a sub-machine gun when such actions should have been taken by other police officers at the scene who were not armed with a sub-machine gun;
(b) In that he failed to make his sub-machine gun safe before he approached the suspect;
(c) In that he was inattentive and failed to maintain safe control of his weapon;
(d) In that he failed to adhere to Connecticut State Police rules and policies; and
(e) In that he caused his sub-machine gun to fire under unsafe circumstances.
(See plaintiff's Complaint, Count One, ¶ 6.)
The plaintiff alleges in his complaint that as a result of O'Hanlon's "negligence and carelessness," he has suffered from a serious and painful injury to his left foot that is, or is likely to be, permanent. The plaintiff further alleges that he was forced to undergo a long and painful period of medical treatment and has suffered pain, mental anguish and anxiety. Moreover, the plaintiff contends that he was unable to work for a defined period of time and that his ability to enjoy life and carry on his usual activities was impaired and likely will be for the rest of his life.
The plaintiff's two-count complaint names both O'Hanlon and the State of Connecticut. Count One is entitled " Robert G. Mendela v. Timothy O'Hanlon (Negligence)." Count Two is entitled " Robert G. Mendela v. State of Connecticut (Negligence)." A through reading of both counts indicates that the plaintiff's cause of action sounds solely in negligence. Furthermore, the plaintiff seeks redress in the form of monetary damages.
On January 8, 2004, the defendants filed a motion to dismiss the complaint against O'Hanlon for lack of subject matter jurisdiction on the grounds of statutory immunity.
DISCUSSION
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 (2002). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . A determination regarding a trial court's subject matter jurisdiction is a question of law." (Citation omitted; internal quotation marks omitted.) Martinez v. Department of Public Safety, 263 Conn. 74, 80-81, (2003).
The Defendants' Motion to Dismiss raises the issue of the Court's subject matter jurisdiction.
It is axiomatic that if the court lacks subject matter jurisdiction, it is without power to hear the matter before it. Therefore, the court must determine the jurisdictional issue "before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction."
Pinchbeck v. Department of Public Health, 65 Conn. App. 201, 208 (2001).
In their memorandum in support of the motion to dismiss, the defendants argue that O'Hanlon is entitled to dismissal of the negligence claim by virtue of statutory immunity pursuant to the provisions of Connecticut General Statutes § 4-165. This statute provides in pertinent part that:
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 . . .
The plaintiff maintains that the motion to dismiss should be denied for several reasons. First, the plaintiff argues that a judgment against O'Hanlon will not cause him to be personally liable by virtue of the state's indemnification statute, codified at General Statutes § 5-141d. More specifically, the plaintiff contends that § 5-141d C.G.S. would be rendered meaningless if all state officers and employees enjoy statutory immunity from suit pursuant to § 4-165.
It is worthwhile to note that the plaintiff does not allege that statutory immunity does not attach because O'Hanlon was acting outside the scope of his duties or that his conduct was wanton, reckless or malicious. In fact, the plaintiff concedes that he "anticipates that it will be found that Defendant O'Hanlon was acting in the discharge of his duties or within the scope of his employment and that his acts or omissions will be found not to have been wanton, reckless or malicious." Plaintiff's Memorandum of Law in Support of Objection to Defendants' Motion to Dismiss, p. 4.
Section 5-141d(a) provides, in relevant part, that "[t]he state shall save harmless and indemnify any state officer or employee . . . from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence . . . resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious."
It is well established that a negligence claim brought against state employees is barred by the doctrine of statutory immunity under § 4-165 C.G.S. where the alleged conduct was within the scope of employment and was not reckless, malicious or wanton. See Plante v. State, 82 Conn. App. 459, 462 (2004). Moreover, our Supreme Court has held that "[s]ection 5-141d(a) contains no express waiver of immunity from suit." St. George v. Gordon, 264 Conn. 538, 551, 825 (2003). In the St. George case, the Connecticut Supreme Court reasoned that "[a] review of analogous statutes demonstrates that when the legislature has intended to waive immunity from suit in other contexts, it clearly has expressed such an intent through explicit language in the text of the statute." (Internal quotation marks omitted.) Id., 552. The Court went on to note that "there is no legislative history concerning § 5-141d C.G.S. indicating that the legislature intended to waive immunity from suit. Section 5-141d C.G.S., originating as Senate Bill No. 737, was debated in the labor committee, on the floor of the House of Representatives, and on the floor of the Senate. See, e.g., Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1, 1983 Sess., pp. 270-72; 26 H.R.Proc., Pt. 21, 1983 Sess., pp. 7491-7501; 26 S.Proc., Pt. 9, 1983 Sess., pp. 2840-43. None of these discussions suggested that the legislature intended to authorize a waiver of immunity from suit." Id., 552-53. Therefore, it is submitted that the plaintiff's reading of § 5-141d C.G.S. as it relates to § 4-165 is inconsistent with Connecticut case law precedent.
While the St. George case implicated sovereign immunity issues, our Supreme Court's analysis regarding § 5-141d appears to be equally applicable in the context of statutory, personal immunity.
The plaintiff also contends that while § 4-165 C.G.S. may provide O'Hanlon with immunity from personal liability, it does not provide him with immunity from suit. This contention must also fail where such argument relies on the incorrect assumption that § 4-165 C.G.S. only provides immunity from liability and not immunity from suit.
Our Supreme Court has previously held that state police officers are immune from suit by virtue of statutory, personal immunity under § 4-165 C.G.S. and, therefore, are not liable to a plaintiff for their alleged acts of misconduct, so long as the alleged misconduct is not wanton, reckless or malicious. See Martin v. Brady, 261 Conn. 372, 802 (2002).
In Martin, the plaintiff sought damages from the defendant police officers alleging that they had violated his state constitutional rights while searching his property and arresting him. The defendants moved to dismiss the action arguing, inter alia, that the claims were barred by statutory immunity. In affirming the dismissal, our Supreme Court held that the defendant police officers were immune from suit pursuant to the statutory immunity provided by § 4-165 C.G.S. Id., 381.
Lastly, the plaintiff reasons that since the state can act only through its officers and agents, the waiver of immunity from suit by the state should be viewed as granting permission to sue state officers and agents. This reasoning would frustrate the purpose of § 4-165 C.G.S. and is directly contrary to the statute's legislative intent. Connecticut has a clear public policy interest in protecting state officers and employees, as evidenced by § 4-165 C.G.S.
"The manifest legislative intent expressed by chapter 53 [of which § 4-165 is a part] is that an employee is immune where and because the state may be sued, and that the state may be sued in instances where a private person would be liable." Spring v. Constantino, 168 Conn. 563, 571 (1975). That is, the manifest policy interest is the guarding of state employees from liability for negligent acts that occur in the course of their employment. See Hunte v. Blumenthal, 238 Conn. 146, 153 (1996).
For all of the foregoing reasons the motion to dismiss the action against Timothy O'Hanlon is granted. So ordered.
Richard A. Robinson, J.