Opinion
No. CV 08 5009093
January 19, 2010
MEMORANDUM OF DECISION MOTION TO DISMISS #105
On May 19, 2009, the defendant, Frederick Jones, filed this motion to dismiss the first count of the revised complaint and a memorandum in support of his motion. The plaintiff, Kathleen B. McCurdy, filed an objection to the motion and a memorandum of law in support of her objection on September 9, 2009. The defendant filed a reply to the plaintiff's objection on September 18, 2009.
On May 15, 2009, the plaintiff filed a revised complaint, in which she alleges the following facts. On October 31, 2006, the plaintiff contacted the Soldiers,' Sailors' and Marines' Fund (SSMF) to seek financial assistance. The SSMF is an agency of the State of Connecticut. The plaintiff's call was directed to the defendant, who was employed by the SSMF at the time of the incident. During the course of the phone call, the defendant made inappropriate comments, including comments sexual in nature. As a result of the defendant's conduct, the plaintiff sustained emotional distress and damages.
The first count of the plaintiff's revised complaint alleges a negligent infliction of emotional distress claim against the defendant. The second count alleges an intentional infliction of emotional distress claim against the defendant.
LAW OF MOTION TO DISMISS
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008). "The motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." Practice Book § 10-31(a). "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).
"When a [trial] 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 . . . 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.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
DISCUSSION
The defendant argues that the court lacks subject matter jurisdiction over the first count of the revised complaint because the negligent infliction of emotional distress count is barred by statutory immunity pursuant to § 4-165. In response, the plaintiff argues that the count is not barred by statutory immunity because the plaintiff has alleged conduct by the defendant that does not fall within the scope of his employment. Additionally, the plaintiff asserts that the defendant's actions were in excess of his statutory authority. The defendant counters that the plaintiff has alleged conduct that falls within the scope of the defendant's employment, and that the "in excess of statutory authority" exception is applicable to sovereign immunity, not statutory immunity pursuant to § 4-165.
"It is well settled that the defense of sovereign immunity can be raised for claims brought directly against the state or against state employees acting in their official capacities. Likewise, the defense of statutory immunity can be raised for claims brought against state employees acting in their individual capacities." Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006). In the present case, the plaintiff brought suit against the defendant in his individual capacity, notwithstanding the plaintiff's allegation that "the [d]efendant was employed by the Soldiers,' Sailors' and Marines' Fund (SSMF), which is an agency of the State of Connecticut." The defendant does not claim that the doctrine of sovereign immunity applies to the present action, and the plaintiff has not claimed that the action was brought against the defendant in his official capacity. Thus, the sole issue is whether the first count of the revised complaint should be dismissed based on statutory immunity.
Section 4-165 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. 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." When considering a pretrial motion to dismiss based on statutory immunity, 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 [his or her] employment or wilfully or maliciously." (Internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002). This statute, thus, identifies two distinct avenues of conduct by which a state employee may lose the immunity granted by § 4-165. First, an employee can be divested of statutory immunity if the defendant's conduct was "wanton, reckless or malicious." A cause of action for negligent infliction of emotional distress, by definition, is not a claim that the defendant acted "wilfully or maliciously." The second circumstance when statutory immunity is lost occurs if the defendant state employee is "acting outside the scope of [his or her] employment." Accordingly, the remaining issue raised by this motion to dismiss is whether the defendant's conduct occurred within the scope of his employment.
"The umbrella of personal immunity provided by [§]4-165 applies only to a state officer or employee who causes injury or damage while acting `within the scope of his [or her] employment.' . . . In interpreting the phrase `in the course of his duty' . . . [the court must focus] on whether the employee was reasonably fulfilling the duties of employment or doing something incidental to it." (Citation omitted.) Antinerella v. Rioux, 229 Conn. 479, 498, 642 A.2d 699 (1994), overruled on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003). To analyze whether conduct falls "within the scope of employment," the Connecticut Supreme Court has noted that it is "necessary to examine the nature of the alleged conduct and its relationship to the duties incidental to the employment." Martin v. Brady, supra, 261 Conn. 377. The Connecticut Supreme Court has dealt with the issue of whether conduct falls within the scope of employment for the purposes of § 4-165 on numerous occasions. In Antinerella v. Rioux, supra, 229 Conn. 499, the plaintiff, a deputy sheriff, alleged that he was wrongfully discharged by the defendant, the high sheriff. The court determined that the allegedly wrongful discharge of the plaintiff was conduct that fell outside the scope of the high sheriff's authority because it was allegedly conducted in furtherance of an illegal fee splitting scheme. Id. The Antinerella court explained that the high sheriff's actions were "personal to him and [were] not primarily employer rooted or reasonably incidental to the performance of employment duties . . . The [high sheriff's] alleged conduct was not designed to advance any interest of his employer, the state, and did not serve any legitimate state interest." (Citation omitted; internal quotation marks omitted.) Id.
In Shay v. Rossi, 253 Conn. 134, 174-75, 749 A.2d 1147 (2000), overruled on other grounds by Miller v. Egan, supra, 265 Conn 325, the plaintiffs brought suit against the defendants, who were employees of the department of children and families. The court determined that an allegedly unreasonable investigation into child neglect and abuse was outside the scope of the defendants' employment when it was based on improper motives. Id., 173-74. The court noted that the defendant's conduct exceeded the scope of employment when they acted "solely . . . to justify their own prior unjustified conduct, and not to carry out the government policy with which they were entrusted . . ." Id., 174.
Finally, in Martin v. Brady, supra, 261 Conn. 375, the plaintiff alleged that the defendants, who were state police officers, violated his constitutional rights when they allegedly physically assaulted him, unlawfully searched his home and destroyed his property. The alleged interactions took place when the defendants sought out the plaintiff pursuant to an extradition arrest warrant that was issued by the state of Florida. Id. The court held that the alleged actions of the defendants were within the scope of their employment because "the plaintiff has alleged that the defendants sought his arrest, executed a search warrant and conducted a search in an attempt to effectuate that arrest. None of these actions was arguably outside the scope of their employment as state police officers. The arrest of the plaintiff was sought for legitimate government interests; namely, the extradition of a fugitive, the plaintiff, pursuant to a warrant issued by the state of Florida. There was no allegation of a misuse of governmental authority for personal gain, as in Antinerella, nor was there any allegation of the extraneous manipulation of government authority in order to justify erroneous conduct, as this court found in Shay." Id., 378-79.
In the present case, the defendant's alleged conduct was not incidental to the duties of his employment. The plaintiff alleges that the defendant made comments that centered on his desire to engage in sexual relations with her. Viewing the complaint in the light most favorable to the plaintiff, the alleged conduct of the defendant was motivated by a personal interest, rather than a legitimate government interest. Regardless of whether portions of the phone conversation were within the scope of the defendant's employment, the allegedly sexual and harassing comments exceeded that scope. Thus, the shield of § 4-165 is inapplicable and the first count of the revised complaint is not barred by statutory immunity. Accordingly, the motion to dismiss is denied.