Opinion
CV165041837S
01-02-2018
John DOE ppa Mary Doe and James Doe v. EAST HARTFORD BOARD OF EDUCATION et al.
UNPUBLISHED OPINION
OPINION
PECK, JTR
On August 15, 2017, the minor plaintiff, John Doe, through his parents and next friends, Mary Doe and James Doe, filed an eight count fifth amended complaint against the defendants, East Hartford Board of Education (board), Town of East Hartford (town), Dattco, Inc. (Dattco), Dare Family Services, Inc., Department of Children and Families (DCF), and Ama Tandoh (Tandoh). In count eight, which is the only count at issue, the plaintiffs allege a common law recklessness claim against Tandoh. The plaintiff alleges the following facts.
Tandoh was a social worker employed by DCF and provided social work services to the minor assailant (minor assailant). During the 2015-2016 school year, the plaintiff received special education, including an individualized education program and an assigned bus for special needs students, at East Hartford Middle School in East Hartford, Connecticut. Prior to the start of the school year, Tandoh had knowledge of the minor assailant’s extensive sexual and behavioral issues for which he was receiving sexualized behavioral therapy. On or about July 28, 2015, Tandoh enrolled the minor assailant in the East Hartford Public School system. Tandoh failed to inform the town or the board of the minor assailant’s past sexual and behavioral issues, despite having knowledge that the minor assailant would be placed on a special needs school bus and was thus a danger to the special needs children riding on it, including the plaintiff. On or about August 25, 2016 and August 31, 2016, while the plaintiff and the minor assailants were on a Dattco school bus, the minor assailant engaged in unwanted sexual conduct and sexually related activities with the minor plaintiff.
On September 5, 2017, Tandoh filed a motion to dismiss count eight of the plaintiff’s fifth amended complaint on the ground that the court lacks subject matter jurisdiction over her. More specifically, Tandoh argues that the allegations involve her actions and/or omissions as a state employee. As such, count eight is against her in her official capacity and is therefore barred by the doctrine of sovereign immunity. In the alternative, Tandoh argues that even if she is being sued in her individual capacity, statutory immunity, pursuant to General Statutes § 4-165, bars the present action. In particular, Tandoh avers that the plaintiff failed to allege sufficient facts to show that she acted in a reckless, wanton, or malicious manner, or beyond the scope of her employment. Tandoh filed a memorandum of law in support of the motion to dismiss. On October 5, 2017, the plaintiff filed a memorandum of law in opposition to Tandoh’s motion to dismiss. On October 23, 2017, the court heard oral argument on the motion at short calendar.
DISCUSSION
" [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).
" [T]rial courts addressing motions to dismiss for lack of subject matter jurisdiction ... may encounter different situations, depending on the status of the record in the case ... [l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts ... Different rules, land procedures will apply, depending on the state of the record at the time the motion is filed. When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, 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.) Columbia Air Services, Inc., v. Dept . of Transportation, 293 Conn. 342, 347, 977 A.2d 636 (2009).
I
SOVEREIGN IMMUNITY
Tandoh argues that count eight of the plaintiff s fifth amended complaint is against her in her official capacity, and is, effectively, a claim against the state. Accordingly, the doctrine of sovereign immunity bars the plaintiff’s claims. Tandoh further contends that any claim sought against her in an official capacity requires a statutory waiver of the state’s sovereign immunity or permission by the claims commissioner to commence an action, neither of which is applicable here. In opposition, the plaintiff maintains that the present action is against Tandoh in her individual capacity, not her official capacity. The plaintiff avers that Tandoh is attempting to avoid, by way of sovereign immunity, the consequences of her reckless failure to protect the plaintiff from the minor assailant, who was in DCF’s care and custody.
" 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, 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).
To determine whether an action is against the state or against a defendant in his individual capacity, the court looks to the following criteria set forth by the Supreme Court: " (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." Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975). " If all four criteria are satisfied, the action is deemed to be against the state and therefore is barred." Kenney v. Weaving, supra, 123 Conn.App. 216.
In the present case, the plaintiff and Tandoh agree that the first two criteria of the Spring test are not in dispute and are therefore met. There is, however, disagreement regarding the third criterion. The plaintiff argues that it is not met because the operative complaint and summons named only Tandoh as the defendant. In response, Tandoh contends that this fact is not dispositive of whether the state is the real party in interest. " 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; see Cimmino v. Marcoccia, 149 Conn.App. 350, 359, 89 A.3d 384 (2014) (" [t]hat the plaintiff purports to sue the defendants only in their individual capacities is not, in itself, determinative of whether the state is the real party in interest"). Accordingly, the plaintiff s decision to name Tandoh as the defendant, and not the state, is not in itself determinative of whether the state is the real party in interest for purposes of the third Spring criterion.
Tandoh further avers that the third criterion of the Spring test is met because all of the plaintiff’s allegations relate to conduct that she took, or failed to take, while performing her official duties as an employee of DCF. Our Supreme and Appellate Courts have repeatedly found the state to be the real party in interest where the injuries alleged were caused by acts that are part of the employee’s official duties. In Somers v. Hill, 143 Conn. 476, 480, 123 A.2d 468 (1956), our Supreme Court held that the state was the real party in interest because damages were sought for injuries allegedly " caused by the [employee] in carrying out specific acts for which the state employ[ed] him ..." See also Macellaio v. Newington Police Dept., 142 Conn.App. 177, 181, 64 A.3d 348 (2013) (" [t]he third criterion of [the Spring test] ... met because damages [were] sought for injuries allegedly caused by the [employee] for performing acts that [were] a part of his official duties such that the state is the real party against whom relief is sought"); Kenney v. Weaving, supra, 123 Conn.App. 216-17 (" [d]amages [were] sought for injuries allegedly caused by the [employee] for performing or not performing acts that [were] part of his official duties"). Similarly, in Cimmino v. Marcoccia, supra, 149 Conn.App. 359-60, the court held that the third criterion was satisfied when the " damages sought by the plaintiff [were] ’premised entirely on injuries alleged to have been caused by the [employees] in performing acts that were part of their official duties."
In the present case, the court agrees with Tandoh that the third Spring criterion is met; thus, the state is the real party in interest. The damages sought by the plaintiff are for injuries allegedly caused by Tandoh’s acts/omissions in connection to the performance of her official duties as a DCF social worker. For example, the plaintiff’s fifth amended complaint notes, among other things, that Tandoh, " as the minor assailant’s social worker, acted with wanton or reckless disregard when she failed to inform the [town], [board], and/or [Dattco] of the minor assailant’s past sexual and behavioral issues." Pl.’s compl., p. 27. Because the damages sought by the plaintiff are premised on Tandoh’s duties as a DCF social worker and not on actions that she might have taken in her individual capacity, the third Spring criterion is met.
With respect to the fourth Spring criterion, that any judgment will operate to control the activities of the state or subject it to liability, the plaintiff argues that a judgment against Tandoh will not operate to control the activities of the state because the state will not be held liable for paying any judgment rendered against Tandoh. See Pl.’s compl., p. 27. Specifically, the plaintiff cites to General Statutes § 5-141d(a), which absolves the state from indemnifying a state official or employee for wanton, reckless, or malicious acts. In response, Tandoh argues that the fourth criterion is disjunctive and that it is satisfied if a judgment would subject the state to liability or operate to control the activities of the state. As such, Tandoh maintains that the fourth criterion is satisfied because any judgment rendered by the court could have the potential to impact the manner in which DCF social workers handle educational programs in the future.
General Statutes § 5-141d(a) provides: " The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141, and any member of the Public Defender Services Commission 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, 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."
On this point, the court also agrees with Tandoh. A review of the relevant case law indicates that the fourth Spring criterion is disjunctive. Compare Cimmino v. Marcoccia, supra, 149 Conn.App. 360 (fourth Spring criterion met because " [a]ny judgment against the defendants would impact the manner in which state officials conduct investigations"), and Hultman v. Blumenthal, 67 Conn.App. 613, 621, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002) (" [a]ny judgment against the defendant would operate to control the activities of the state, specifically the role of the attorney general’s office in informing the public"), with Macellaio v. Newington Police Dept., supra, 142 Conn.App. 181 (fourth Spring criterion met " because any judgment against the defendant would subject the state to liability") and Kenney v. Weaving, supra, 123 Conn.App. 217 (same). Therefore, the fourth criterion is met where a judgment will either " operate to control the activities of the state or subject it to liability." (Emphasis added.) Spring v. Constantino, supra, 168 Conn. 568. Here, as Tandoh contends, any judgment by this court has the potential to impact the manner in which DCF social workers handle educational placement of children with past sexual and behavioral issues. Accordingly, the fourth Spring criterion is met.
In sum, because the Spring criteria are satisfied, the court concludes that the plaintiff’s complaint alleges a claim against Tandoh in her official capacity. Thus, the present action against Tandoh is, effectively, an action against the state.
This conclusion does not end the court’s inquiry as " [t]he sovereign immunity enjoyed by the state is not absolute." (Internal quotation marks omitted.) Macellaio v. Newington Police Dept., supra, 142 Conn.App. 183 n. 6; see also Kenney v. Weaving, supra, 123 Conn.App. 217 (" [d]espite the four Spring criteria being met ... it is possible for a plaintiff to avoid the bar of the doctrine of sovereign immunity" by demonstrating that an exception is applicable). " There are three exceptions to the doctrine of sovereign immunity: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights ... and (3) when an action seeks declaratory or injunctive relief on the basis of a (substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority." (Internal quotation marks omitted.) Cimmino v. Marcoccia, supra, 149 Conn.App. 361. " In the absence of statutory waiver of sovereign immunity, [however, ] the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 351; see Miller v. Egan, supra, 265 Conn. 317 (" [a] plaintiff who seeks to bring an action for monetary damages against the state must first obtain authorization from the claims commissioner").
In the present case, the plaintiff seeks monetary damages for the alleged harm caused by Tandoh in the discharge of her official duties as a DCF worker. The plaintiff, however, has neither directed the court to any statute indicating that the legislature has waived sovereign immunity nor obtained authorization from the claims commissioner to commence the present action. Because the plaintiff’s claim against Tandoh does not fall within any recognized exception to the doctrine of sovereign immunity, it is barred.
II
STATUTORY IMMUNITY
In the alternative, Tandoh argues that even if she is being sued in her individual capacity, the court lacks subject matter jurisdiction because of the statutory immunity afforded to her by General Statutes § 4-165. Specifically, Tandoh notes that the plaintiff failed to allege sufficient facts to show that she acted in a reckless, wanton, or malicious manner, or beyond the scope of her employment. Tandoh adds that, at best, the plaintiff’s allegations amount to mere negligence. In response, the plaintiff argues that Tandoh acted recklessly and wantonly by withholding information concerning the minor assailant’s prior sexual misconduct at the time of enrolling the minor assailant for school as a special education student in East Hartford.
" As with sovereign immunity, § 4-165 provides state officers and employees with qualified immunity." Manifold v. Ragaglia, 94 Conn.App. 103, 112, 891 A.2d 106 (2006). Section 4-165(a) 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 or her duties or within the scope of his or her employment." (Emphasis added.) When, as here, the motion to dismiss raises the issue of statutory immunity under § 4-165, the court must " 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 [her] employment or willfully or maliciously." Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).
" In applying § 4-165, our Supreme Court has understood ‘wanton, reckless or malicious’ to have the same meaning as it does in the common-law context ... Under the common law, [i]n 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." (Citations omitted; internal quotation marks omitted.) Manifold v. Ragaglia, 102 Conn.App. 315, 324, 926 A.2d 38 (2007); see also Martin v. Brady, supra, 261 Conn. 380 (complaint must contain an allegation from which the court " can infer that the defendants’ conduct was indicative of such a state of mind or that the conduct rose to the level of egregiousness necessary to be considered wanton, reckless, or malicious").
In the present case, the plaintiff alleges, inter alia, that Tandoh acted with wanton and reckless disregard for the safety of the special needs students, including the plaintiff, when she failed to inform the town, board, and/or Dattco of the minor assailant’s past sexual and behavioral issues. These allegations fail to allege more than a failure on Tandoh’s part to exercise a reasonable degree of watchfulness. It could not be reasonably inferred from the plaintiff’s allegations that Tandoh had the requisite state of mind; specifically, that Tandoh intentionally or maliciously caused the injury to the plaintiff by failing to inform of the minor assailant’s past sexual and behavioral issues. See Manifold v. Ragaglia, supra, 102 Conn.App. 325 (" a plaintiff must produce facts from which a reasonable person could infer that the defendant acted with the requisite mental state of recklessness and malice"). Thus, the plaintiff’s allegations although certainly disturbing and perhaps negligent on the part of Tandoh, if true, do not rise to the level of " wanton, reckless, or malicious" so as to overcome the statutory immunity provided in § 4-165.
CONCLUSION
Accordingly, for the foregoing reasons, Tandoh’s motion to dismiss is hereby granted.