Opinion
CV166062283S
07-17-2017
Emmanuel Torres PPA Efrain Torres v. Melinda Teague-Turner
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#112)
Robin L. Wilson, J.
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
On May 12, 2016, the minor plaintiff, Emmanuel Torres, through his parent and next friend, Efrain Torres, commenced this action against Melinda Teague-Turner. In his two-count complaint, the plaintiff alleges the following facts. On March 19, 2015, the defendant was transporting the plaintiff from his school in Hamden, Connecticut, to his home in New Haven, Connecticut. While a passenger in the defendant's vehicle, the defendant intentionally grabbed the plaintiff's right hand and twisted it, causing it to fracture. The plaintiff asserts claims for intentional assault and intentional infliction of emotional distress.
On April 11, 2017, the defendant filed a motion for summary judgment on the ground that the defendant is protected by the doctrine of sovereign immunity. Specifically, the defendant argues that she is employed by Area Cooperative Educational Services (ACES), a regional education service center created pursuant to General Statutes § 10-66a et seq., and which is an agent of the state. Therefore, as an employee of ACES, who was operating a vehicle provided by ACES in the scope of her employment, she is also an agent of the state shielded by sovereign immunity. The plaintiff objects to the defendant's motion for summary judgment and argues that the defendant is not being sued as an employee of ACES, but in her individual capacity. The court heard oral argument on the motion at short calendar on June 19, 2017.
In a surreply filed on May 30, 2017, the plaintiff inexplicably argues that the motion for summary judgment should be denied because the defendant has waived the right to challenge personal jurisdiction. It would appear that the plaintiff has conflated personal jurisdiction and suing a state agent in their individual capacity. Determining whether a state agent is being sued in their official or individual capacity implicates subject matter jurisdiction, because it is essentially a question of whether or not sovereign immunity applies.
DISCUSSION
Although the issue of sovereign immunity has been raised and addressed by the parties in the context of a motion for summary judgment, because the doctrine of sovereign immunity implicates subject matter jurisdiction; see Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011); it is more properly addressed in a motion to dismiss. Accordingly, the court will treat the defendant's motion for summary judgment and the plaintiff's objection thereto as a motion to dismiss and an objection to the motion to dismiss. See e.g., Cadle Co. v. D'Addario, 268 Conn. 441, 445 n.5, 844 A.2d 836 (2004) (treating parties' cross motions for summary judgment as motion to dismiss and objection to motion to dismiss); JP Alexandre, LLC v. Egbuna, 137 Conn.App. 340, 345 n.5, 49 A.3d 222 (" it is not improper to treat a motion for summary judgment as a motion to dismiss"), cert. denied, 307 Conn. 913, 53 A.3d 1000 (2012).
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
" The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty." Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). " Our Supreme Court has recognized that 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." (Internal quotation marks omitted.) Kenney v. Weaving, 123 Conn.App. 211, 215, 1 A.3d 1083 (2010). If an officer is sued in his official capacity, then the action is truly against the state, however, " [i]f 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." Miller v. Egan, 265 Conn. 301, 307, 828 A.2d 549 (2003).
" Whether a particular action is one against the state is not determined solely by referring to the parties of record . . . The 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." (Citations omitted; internal quotation marks omitted.) Kenney v. Weaving, supra, 123 Conn.App. 215-16. In the present case, the defendant argues that even though ACES is not named in the complaint, she is being sued in her official capacity as an employee of ACES because she was acting within the scope of her employment when transporting the plaintiff home on March 19, 2015. The plaintiff counters that the defendant's employer is not named or referred to because she is not being sued as an employee of ACES but, rather, as an individual who is alleged to have intentionally assaulted the plaintiff. To determine whether the present action is against the state or the defendant in her individual capacity, this court looks to the four criteria set forth by our Supreme Court. The criteria are: " (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." (Internal quotation marks omitted.) Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975). All four criteria must be met for the action to be deemed against the state. See Kenney v. Weaving, supra, 216.
Where one of the four criteria is not met, the court need not decide if the others are satisfied; see Spring v. Constantino, supra, 168 Conn. 568; and in the present case, it is clear that neither the third or fourth criteria are satisfied. The damages sought by the plaintiff are premised on injuries alleged to have been caused by the defendant's intentional conduct of grabbing and twisting the plaintiff's right hand, rather than on the performance of acts related to her duties transporting students to and from the school, such as her operation of the vehicle. But see Cimmino v. Marcoccia, 149 Conn.App. 350, 359-60, 89 A.3d 384 (2014) (state real party in interest where damages sought for injuries allegedly caused by defendants in conducting investigation authorized by statute and initiated by state agencies which employed them); Kenney v. Weaving, supra, 123 Conn.App. 216-17 (state real party in interest where damages sought for injuries allegedly caused by commissioner of motor vehicles performing or not performing acts part of official duties). Moreover, a judgment against the defendant will not operate to control the activities of ACES or subject the state to liability. The claims against the defendant are premised on intentional conduct and it is difficult to see how a judgment against the defendant for intentionally grabbing, twisting, and ultimately fracturing the plaintiff's right hand would operate to control ACES' operation of its transportation or other activities. Similarly, the state would not be subject to liability for an employee's intentional and malicious conduct, which is what the plaintiff's complaint clearly alleges. See Frohn v. Ring, Superior Court, judicial district of Waterbury, Docket No. CV-12-6015670-S, (April 8, 2013, Shapiro, J.) (pointing to General Statutes § 5-141d as basis for determining whether state would be subject to liability); Johnson v. Connecticut Juvenile Training School, Superior Court, judicial district of Middlesex, Docket No. CV-05-4003278-S, (October 20, 2005, McWeeny, J.) (finding that § 5-141d not applicable if state officers/employees were malicious in acts and thus judgment on basis of malicious conduct would not subject state to liability).
General Statutes § 5-141d provides in relevant part: " (a) The 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 or alleged deprivation of any person's civil rights or other act or omission resulting in damage or injury, if the officer, [or] employee . . . 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."
As neither the third or fourth criteria of the Supreme Court test is met, it is clear that the action is against the defendant in her individual capacity and is not, in effect, against the state. Therefore, sovereign immunity does not apply to bar the plaintiff's action and the court does not lack subject matter jurisdiction.
Although the defendant does not raise statutory immunity pursuant to General Statutes § 4-165(a) as an alternative ground for dismissal, the court briefly notes that it would not be available to the defendant under the circumstances alleged here. Section 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." (Emphasis added.) Our Supreme Court has looked to the common law in determining the meaning of " wanton, reckless or malicious" for the purposes of § 4-165(a). See Martin v. Brady, 261 Conn. 372, 379, 802 A.2d 814 (2002). " 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 . . . 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." (Internal quotation marks omitted.) Id. In the present case, the plaintiff alleges that the defendant intentionally grabbed and twisted his right hand, causing it to fracture. The plaintiff alleges that the defendant intentionally and maliciously caused this injury and intentionally caused him emotional distress. Such alleged conduct may fairly be characterized as a reckless disregard for the safety of the plaintiff and as falling within the standard of highly unreasonable conduct. Under the circumstances alleged here, § 4-165 does not provide statutory immunity to the defendant.
CONCLUSION
Accordingly, the defendant's motion to dismiss is denied.