Opinion
HHDCV165041837S HHDCV176081106S
09-12-2018
John DOE v. EAST HARTFORD BOARD OF EDUCATION et al.
UNPUBLISHED OPINION
OPINION
PECK, JTR
On March 23, 2018, the minor plaintiff, John Doe, through his parents and next friends, Mary Doe and James Doe, filed a ten-count seventh amended complaint against the defendants, East Hartford Board of Education (board), Town of East Hartford (town), Dattco, Inc. (Dattco), Dare Family Services, Inc. (Dare), Department of Children and Families (DCF), and Richard Laporte (Laporte). Companion case plaintiff, Timothy Doe, through his parents and next friends, Tina Doe and Thomas Doe, filed an eight-count third amended complaint on February 27, 2018, against the same defendants identified above. The current motions to dismiss challenge count nine, alleging negligence against Laporte, and count ten, alleging liability under respondeat superior against Dare.
Amy Tandoh, a social worker employed by DCF who provided social work services to the minor assailant, was also originally named a defendant by John Doe. However, the court dismissed the single count alleged against Tandoh on January 2, 2018.
The plaintiffs allege the following facts. Richard Laporte was a foster parent with whom the minor assailant had been placed by Dare Family Services, Inc. Laporte was aware of the minor assailant’s history of behavioral issues and the risk he posed to others due to his previously exhibited predatory sexual behaviors. Even though Laporte was aware of this risk, Laporte allowed him to enroll in "regular" East Hartford Public Schools and be transported on a bus for students with special needs. On August 26, 2015, and August 31, 2015, as a result of Laporte’s negligence, the minor assailant engaged in unwanted sexual contact with the minor plaintiffs on a school bus. Additionally, Laporte was a mandated reporter under General Statutes § § 17a-101 and 17a-103, and had reasonable cause to believe a[nother] child "had been abused or placed in imminent risk of serious harm" by the assailant and failed to report that event.
Dare and Laporte now move to dismiss the plaintiffs’ counts alleging respondeat superior and negligence against them, respectively. Laporte argues that as a foster parent, he is subject to the regulations enacted by DCF which govern a foster parent’s obligations and responsibilities toward a child entrusted by the department to his care, and consequently is immune from suit consistent with our Supreme Court’s holding in Hunte v. Blumenthal, 238 Conn. 146, 163, 680 A.2d 1231 (1996). Dare argues that because the court lacks jurisdiction as to the claim against Laporte, it also lacks jurisdiction as to the count sounding in respondeat superior against Dare. On May 29, 2018, the court heard oral argument on these motions at short calendar.
"[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). "Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court’s subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). Accordingly, "a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).
"When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light." Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981). "[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).
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." "As with sovereign immunity, § 4-165 provides state officers and employees with qualified immunity." Manifold v. Ragaglia, supra, 94 Conn.App. 112. 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 [their] employment or willfully or maliciously." Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).
In Hunte v. Blumenthal, 238 Conn. 146, 680 A.2d 1231 (1996), our Supreme Court considered whether, pursuant to General Statutes § § 4-165 and 5-141d, foster parents qualify as "employees" of the state rather than independent contractors, entitling them to statutory immunity.
General Statutes § 5-141d(b) provides 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 Hunte court stated: "Construed together, [§ § 4-165 and 5-141d] protect state employees acting within the legitimate scope of their employment from personal liability for negligence. 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 ... This would include the vicarious liability of a private person for the acts of his employees arising out of the scope of their employment under the doctrine of agency or respondeat superior ... Section 5-141d similarly evinces the legislature’s intent that the state indemnify and defend any officer or employee sued for negligent conduct occurring in the course of his or her employment." (Citations omitted; internal quotation marks omitted.) Hunte v. Blumenthal, supra, 238 Conn. 151.
The court further reasoned that whether an individual is an employee or an independent contractor "depends upon the existence or nonexistence of the [employer’s] right to control the means and methods of work." (Emphasis in original.) Hunte v. Blumenthal, supra, 238 Conn. 154. Ultimately, the court determined that foster parents are employees of the state, holding that "[t]he fountainhead of the state’s right to control foster parents is the statutory scheme requiring the department to guarantee the welfare of foster children." Id., 155.
The plaintiffs argue that the fact that Laporte contracted with and was licensed by Dare and not directly by DCF distinguishes the present action from Hunte. However, the Supreme Court in Hunte determined that, beyond licensing requirements, the comprehensive statutory and regulatory scheme governing foster parents provided sufficient evidence of the state’s right to control foster parents in the discharge of their duties, and were therefore state employees for purposes of § 4-165. Hunte v. Blumenthal, supra, 238 Conn. 154. The fact that the state directly issued a license to the foster parents in Hunte was not a significant factor in the court’s decision. See also Pelkey v. Frew, Superior Court, judicial district of New Haven, Docket No. CV- 98-0416972-S (December 2, 1999, Alander, J.) (25 Conn.L.Rptr. 698) (foster parents not licensed by state or by private provider still qualified for statutory immunity under § § 4-165 and 5-141d). Moreover, as noted by the defendants, the statutes and regulations controlling Laporte in carrying out his foster parent duties do not differentiate between foster parents trained and licensed directly by the state and those trained and licensed by a private entity contracting with the state to provide foster care services. Thus, this court should not read such a distinction into Hunte.
In the present action, it is clear that Laporte served as a foster parent in the state of Connecticut. The fact that he was contracted to do so with Dare does not negate the fact that he is still under the ultimate control of DCF. Consequently, Laporte qualifies as a state employee under § § 4-165 and 5-141d, and the court lacks jurisdiction as to the plaintiffs’ counts sounding in negligence against Laporte and respondeat superior as to Dare.
CONCLUSION
Accordingly, for the foregoing reasons, the motions to dismiss the counts sounding in negligence against Laporte and respondeat superior against Dare in each of the captioned cases is hereby granted.