Opinion
No. CV05-4013928
September 7, 2006
MEMORANDUM OF DECISION
Before this Court is the Motion to Dismiss and Memorandum of Law filed by the Defendants, John Doe II and the Commissioner of Transportation. The Plaintiff filed its Memorandum in Opposition to the Defendants' Motion to Dismiss on November 17, 2005, to which the Defendants filed their Reply Memorandum on November 18, 2005. On June 27, 2006, this Court heard oral argument. Having reviewed the briefs filed by the parties and considered the arguments of counsel, this Court grants the Defendants' Motion to Dismiss Count Six and Count Seven.
In this case, the Plaintiff has alleged that while riding his bicycle on Palisado Avenue in the town of Windsor, he collided with a Windsor Police Department Radar Trailer which had been placed, parked or stored in the travel portion of the roadway, and sustained personal injuries as a result. Among various named Defendants, of the Town of Windsor, the Plaintiff has also sued the Commissioner of the State Department of Transportation and John Doe II, identified as an agent of the Commissioner of the State Department of Transportation. In their Motion, the Defendants seek to dismiss 1) Count Six against John Doe II invoking his immunity from suit under General Statutes § 4-165, and 2) Count Seven of the complaint whereby the Commissioner has asserted the sovereign immunity of the state.
At the outset, the Plaintiff challenges the Motion to Dismiss, claiming that it is an inappropriate procedural vehicle to raise either statutory immunity under § 4-165 or sovereign immunity. The Plaintiff claims that John Doe II is limited to asserting immunity under § 4-165 as a special defense, while the Commissioner of Transportation may only invoke sovereign immunity via a motion to strike. As to the former claim, the Plaintiff cites Bicio v. Brewer, 92 Conn.App. 158, 160, 884 A.2d 12 (2005), for the proposition that the Defendant must raise statutory immunity via a special defense. In Bicio, however, this issue is not addressed, even as dicta and as the Defendant accurately notes in his brief, the trial court ultimately granted the state's motion to dismiss based on the employee's immunity under § 4-165. This Court finds no support for the Plaintiff's claim but rather, finds support for the contrary.
"Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction." Manifold v. Ragaglia, 94 Conn.App. 103, 113-14, 891 A.2d 106 (2006). Our courts have long held that because "the doctrine of sovereign immunity implicates subject matter jurisdiction, [it] is therefore a basis for granting a motion to dismiss." Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994). See Practice Book § 10-31; see also Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004).
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
With respect to John Doe II, the Defendant asserts immunity under General Statutes § 4-165. Section 4-165 implicates the immunity of state officers and employees when they have been sued in their individual capacity. See Miller v. Egan, 265 Conn. 301, 308, 828 A.2d 549 (2003). Its provisions, in relevant part, state:
In his summons and complaint, however, the Plaintiff sues the Defendant, John Doe II, as an "agent, servant and/or employee" of Stephen Korta, Commissioner of the Department of Transportation. As such, the Court notes that while not raised or briefed, there is an issue as to whether or not the Defendant is actually being sued in his official capacity and indeed, given that the Defendant is designated as a John Doe II, whether this is in effect a suit against the sovereign state. If so, sovereign immunity, as opposed to statutory immunity, would operate to bar this count. See Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975); Hultman v. Blumenthal, 67 Conn.App. 613, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002); Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977); Martin v. Brady, 64 Conn.App. 433, 437, 780 A.2d 961 (2001), aff'd, CT Page 16440 261 Conn. 372, 802 A.2d 814 (2002); Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981).
Sec. 4-165. Immunity of state officers and employees from personal liability.
(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. 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 reviewing the complaint in the light most favorable to the Plaintiff, it is clear that Count Six makes no allegation that the Defendant was engaging in conduct that was wanton, reckless or malicious or that his conduct was outside the scope of his employment. Indeed, the Sixth Count not only sounds clearly in negligence but its heading is captioned as a negligence claim. As the Miller court held, "§ 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." Miller v. Egan, supra, 265 Conn. 319. Therefore, Count Six is dismissed.
The Defendant, Commissioner of Transportation, also seeks to dismiss Count Seven of the complaint asserting that the state has not consented to be sued. As such, he maintains that given the sovereign immunity of the state, this Court is without subject matter jurisdiction to hear a common-law nuisance action. This Court agrees. This is an action for damages against the state, for which the Plaintiff has not asserted that the state has waived its sovereign immunity. See Amore v. Frankel, supra, 228 Conn. 364. As such, the Plaintiff is required to exhaust his administrative remedies by seeking from the Claims Commissioner permission to sue under General Statutes § 4-160. See Miller v. Egan, supra, 265 Conn. 313-18. Count Seven of the complaint is also dismissed.
The Defendant's Motion to Dismiss is hereby GRANTED.